Desk Item #11a�pVIN -0 MEETING DATE: 8/19/13
ITEM NO: 11
DESK ITEM - a
COUNCIL AGENDA REPORT
DATE: AUGUST 19, 2013
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER
SUBJECT: REGULATION OF SINGLE -USE CARRYOUT BAGS
A. ADOPT A RESOLUTION DETERMINING THE PROGRAM ENVIRONMENTAL
IMPACT REPORT PREPARED BY THE COUNTY OF SAN MATEO FOR THE
REUSABLE BAG ORDINANCE BE FOUND ADEQUATE FOR THE TOWN OF
LOS GATOS ACTION; AND ADOPTING THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT FINDINGS OF FACT FOR ADDITION OF
CHAPTER 11.40 TO THE TOWN OF LOS GATOS MUNICIPAL CODE
REGARDING SINGLE -USE CARRYOUT BAGS.
B. INTRODUCE AN ORDINANCE OF THE TOWN OF LOS GATOS TO ADD A
NEW SECTION 11 TO THE TOWN OF LOS GATOS MUNICIPAL CODE
ENTITLED SINGLE -USE CARRYOUT BAGS
REMARKS:
Staff received additional questions from the Town Council regarding this item. The questions and
responses are as follows:
Q:. The staff report says merchants are "allowed" to sell paper bags. The draft ordinance states
merchants "may only" make paper bags available if they charge. One is voluntary and one is required;
please clarify.
A: The ordinance is correct. Section 11.40.030, item A of the proposed ordinance states: No person or
retail establishment shall provide a single -use carryout bag to a customer, at the check stand, cash
register, point of sale or other point of departure for the purpose of transporting food or merchandise out
of the establishment.
PREPARED BY: Christina Gilmore, Assistant to the Town Manager
Reviewed by
Assistant Town Manager (W Town Attorney Finance
NAMGR\AdminWorkFiles\2013 Council Reports\Aug 19 \Reusable Bag Ordinance \8.19.13 Single- Use Carryout Bag Desk Item.docx
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: SINGLE -USE CARRYOUT BAG ORDINANCE
AUGUST 19,2013
Merchants would be required to provide recycled paper bags or reusable bags to customers for sale only.
The minimum charge is $0.10 in the first year of the ordinance implementation, and then would increase
to a minimum charge of $0.25 in 2015.
Q: Do the merchants keep the money from bag sales? Also would it be sales taxable income?
A: Retailers would keep the money charged from the sale of reusable plastic and recycled paper bags.
Retailers are not required to. pay sales tax on this charge. This is consistent with the special notice
published June 2011 from the State Board of Equalization ruling that sales tax does not apply to City
and County Paper Bag Surcharges, as the charge is imposed by the local jurisdiction upon the customer,
not the retailer. As such, this charge is not included in the retailer's gross receipts and is not subject to
sales or use tax.
Q: Can the Town require the retailer to charge for the bag and set the minimum - price?
A: The California Constitution grants local agencies (Town) the right to adopt regulations to promote
the public convenience or general prosperity and to adopt regulations to promote the public health,
public morals or the public safety. Opponents to single use plastic carryout bags challenged the charge
for each paper carryout bag in Los Angeles County and, the Court determined that the charge for a paper
bag was valid.
Q: Can the Council either not adopt a minimum charge or adopt a different charge?
A: If the Council decides to propose changes to the ordinance that are different from the ordinance
analyzed in the County of San Mateo Reusable Bag FEIR, an Addendum EIR may be required to
address the possible environmental effects associated with the adoption of such an ordinance within the
Town of Los Gatos.
Additional correspondence was received for the period of 12:01 p.m. Friday, August 16, 2013 through
1:00 p,m. Monday, August 19, 2013.
Attachments 1, 2, 3 and 4 (previously received with staff report):
1. Resolution (with Exhibit A)
2. Ordinance
3. Public Outreach Comment Summary
4, Public Comments received through 3:00 p.m. Thursday, August 15, 2013
Attachment 5 (received with Addendum):
1. Public Comments received 3:01 p.m. Thursday, August 15 through 12:00 p.m. Friday, August
16, 2013.
Attachment 6 (received with Desk Item):
1. Public Comments received 12:01 p.m. Friday, August 16 through 1:00 p.m. Monday, August 19,
2013.
Subject: - FW: Question on the proposed plastic bag ban
From: Mike Maiten [mailto: mike. maiten @gmail.com]
Sent: Saturday, August 17, 2013 12:10 PM
To: Town Manager
Cc: Christina Gilmore; Heather St John; Jackie Rose
Subject: Re: FW: Question on the proposed plastic bag ban
I have a comment on what may be two errors in the draft of the Town Ordinance regarding the ban of single use plastic
bags.
The draft ordinance was posted yesterday on the Town Website at littp://www.los)zatosca.gov/index.aspx?NID=195 1, with
the link to the Staff Report dated 19 August 2013 at
htti):H losaatos .�4ran.icus.com /MetaViewer.i)hi) ?view id =2 &event id =163 &meta id= 1.24893
First Error: In Section 11.40.015 (Definitions), in the last paragraph, the first sentence says:
"Single -use carry -out bag means a bag other than a reusable bag provided at the check stand, cash register, point of
sale or other point of departure, including departments within a retail establishment for the_pprpose of transporting
fio 4,--0,-, �ercl �nc�lse out of tfie establ�$fl�e l(."
In this sentence, there appears to be a comma that is missing that affects the interpretation of the definition of a single -use
carry -out bag. If the intent is to define a single -use carry -out bag as one that will be used for the purpose of transporting
items out of the establishment, then a comma should be inserted before the phrase starting "for the purpose ". The presence
of this comma will apply the purpose to all the other listed items (check, stand, point of sale, and other point of departure).
Without the missing comma, the "purpose" only applies to "departments within a retail establishment ".
Thus, with the addition of the missing comma, the sentence would read:
"Single -use carry -out bag means a bag other than a reusable bag provided at the check stand, cash register, point of
sale or other point of departure, including departments within a retail establishment; for the purpose of transporting
food or merchandise out of the establishment."
With this correction, the purpose of transportation out of the establishment would be clearly defined for the single -use
carry -out bag. With this purpose clearly defined, it addresses all of the concerns that I raised in my letter of 10 August
2013.
Second Error: In Section 11.40.030 (Single -use carry -out bag), Paragraph A: It ends with the phrase:
"except as provided in 0 pter l f ;- Artrcle N"
The problem here is that there are no Chapters nor Articles in the draft ordinance. This is likely a reference to the section
in the ordinance that describes the exceptions. If so, I suggest that this be corrected to read:
"except as provided in S,,ect'o% 1 „4'0 050 (Exepti'oils),`”
With best regards,
<MSM>
Mike Maiten
136 Belvue Drive
Los Gatos, CA
ATTACHMENT 6
From: Leslie Tamminen <Leslie.Tamminen @gmail,com>
Sent: Monday, August 19, 2013 8:52 AM
To: Christina Gilmore
Subject: Please ban single -use bags in Los Gatos
I respectfully request you take action to ban single use plastic bags and place a fee on recycled paper bags in Los Gatos.
I support this measure because it will encourage a shift toward reusable bags. Plastic litter degrades our neighborhoods
and local waterways. It is hazardous to public health, wildlife, and is difficult to collect once it becomes litter. As a
taxpayer, I believe our budget for litter removal must be spent wisely. Banning single use plastic bags will reduce
spending taxpayer dollars on the cleanup of plastic debris.
Leslie Tamminen
2601 Ocean Park Blvd
Santa Monica, CA 90405
Subject: FW: The Plastic Bag Ban
From: Dick Allen [mailto:rallen(&garlic.com]
Sent: Monday, August 19, 2013 10:26 AM
To: Town Manager
Cc: BSpector; Steve Leonardis; Diane McNutt; Joe Pirzynski; Marcia Jensen
Subject: The Plastic Bag Ban
I am a long -term Los Gatos resident. I have previously written to the town manager opposing this politically
correct bag ban ordinance.
I since have done further research and have enclosed additional comments which are too late to be included in
the packet provided to Town Council members. This ill- advised ordinance will encourage shoppers to seek out
other towns more shopper friendly and will do little to curb real pollution while causing large increases in
shoplifting and subsequent price increases. I, for one, will go out of my way to shop in towns without such
bans.
Here arfe some reports on the shoplifting issue:
In 2011, Washington D.C. enforced a reusable bag tax and officials became steadily more
suspicious of shoppers' activities.
"Since the fee was established last year, we have noticed customers using traditional bags,
along with less traditional pieces such as backpacks, to not only transport items from the
store, but to carry items throughout the store," spokesman of the Advisory Neighborhood
Commission of Washington D.C. Craig Muckle said in an interview with Washington City
Paper.
This suspicion solidified into disturbing data a year later on the other side of the country.
When a Seattle ordinance banning plastic bags tools effect on July 2012, 21.1 percent of
surveyed Seattle business owners said that the plastic bag ban led to an increase
in shoplifting problems. Seattle's Lake City Grocery Outlet, for instance, had thousands of
dollars worth of goods stolen that year.
Austin, Texas instituted a plastic bag ban in March of this year and officials have noticed
that shoplifters are trying to take advantage of the new law, though no conclusive data exists
on the subject.
"We are getting a new type of offender that is taking advantage of the system," Austin police
officer David Silva said in an interview with the Leader - Telegram. Owners have also noted
that the ban could make it easier for people to steal, and though theft rates have
not substantially increased, it is difficult for store employees to differentiate between
customers and shoplifters.
Many cities have instituted plastic ban bans or taxes amid environmental concerns, though
many policy experts are not convinced of the productivity of these laws.
"Moving consumers away from plastic bags only pushes people to less environmentally
friendly options such as paper bags, which require more energy to produce and transport,
and reusable bags, which are not recyclable," environmental policy expert Mark Daniels said
in a 2011 New York Times interview.
Here is a report on the unhealthy aspects of plastic bag bans:
San Francisco passed America's "first -in- the - nation" ban on plastic bags in chain
grocery stores and drugstores in 2007. In a research paper for the Wharton School
Institute for Law and Economics, law professors Jonathan Klick and Joshua Wright
crunched state and federal data on emergency room admissions and food - borne- illness
deaths and figured that the San Francisco ban "led to an increase in infections
immediately upon implementation."
They found a 46 percent rise in food - borne - illness deaths. The bottom line: "Our results
suggest that the San Francisco ban led to, conservatively, 5.4 annual additional deaths."
California politicians didn't even bother studying the possible health effects of their anti -
bag laws. They were in such a hurry to tell their constituents what's best for them, they
forgot to check how their busybody scheme might go wrong.
Please don't let Los Gatos blindly follow this unproductive trend.
Dick Allen
f allen a,garlic. corn
I I k,
From: Keith Turner <Keith.Turner @safeway,com>
Sent: Monday, August 19, 2013 11:00 AM
Subject: Reusable Bag Use -
Dear Councilmember-
I am writing in support of the proposed carry out bag ordinance currently under consideration. Safeway supports Los
Gatos adopting the proposed carryout bag ordinance which was developed as part of regional process.
Dozens of cities throughout California have implemented ordinances of this type, and Safeway has found the results to
be uniformly positive. It is.vitaily important that jurisdictions throughout the region adopt consistent carryout bag
regulations. Without consistent regulation unnecessary competitive advantages could be created resulting in costly
operational challenges.
Please consider Safeway a resource as Los Gatos encourages reusable bag use and implements this ordinance.
Keith Turner
Director, Public and Government Affairs
Safeway Inc. Northern California Division
925.467.2212
925.467.2971 (fax)
keith.turner(aD.safewaV.com
"Email Firewall" made the following annotations.
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From: Tim James <tjames @CAGrocers.com>
Sent: Monday, August 19, 201311:33 AM
To: BSpector; Steve Leonardis; Diane McNutt; Joe Pirzynski; Marcia Jensen
Cc: Christina Gilmore; Town Manager
Subject: Carryout Bag Ordinance - August 19 Agenda
Attachments: Los Gatos Bag LTR - 8- 19- 13.pdf
Councilmembers, Please accept the attached letter regarding the proposed carryout bag ordinance. Feel free to contact
me with any question or for additional information. Thank you for your consideration. Tim
Timothy James
Manager, Local Government Relations
California Grocers Association
1215 K Street, #700
Sacramento, CA 95814
Phone: 916 -448 -3545
Cell: 916 -832 -6149
fi:._ftike e us on Fcebook!
PRIVILEGED & CONFIDENTIAL; This communication, including attachments, is for the exclusive use of addressee and may contain
proprietary, confidential and /or privileged information. If you are not the intended recipient, any use, copying, disclosure,
dissemination or distribution is strictly prohibited. If you are not the intended recipient notify the sender immediately by return e-
mail, delete this communication and destroy all copies.
August 19, 2013
The Honorable Barbara Spector
Mayor, Town of Los Gatos
110 E. Main Street
Los Gatos, California 95030
RE: Carryout Bag Ordinance
Dear Mayor Spector,
On behalf of the California Grocers Association, I write to encourage you to adopt the proposed ordinance developed
as part of a regional effort. It is critical carryout bag regulations meet their intended environmental goals, respect
consumers, and minimize impacts on retailers. We believe the ordinance as proposed meets these tests.
The California Grocers Association is a non- profit, statewide trade association representing the food industry since
1898. CGA represents approximately 500 retail member companies operating over 6,000 food stores in California
and Nevada, and approximately 300 grocery.supplier companies. Retail membership includes chain and independent
supermarkets, convenience stores and mass merchandisers. CGA members include a number of grocery companies
operating in Los Gatos.
The model of banning single -use plastic bags and allowing recyclable paper bags for a charge has shown to
encourage reusable bag use, provide consumers no -cost and low -cost carryout options, and minimize operational and
financial impacts to retailers. Over 80 California jurisdictions have passed this type of ordinance including the
Counties of Los Angeles and Alameda along with the cities of Long Beach, San Francisco, San Jose and numerous
other San Mateo and Santa Clara County cities.
By banning single use plastic bags and placing a charge on single use paper bags consumers are encouraged to use
reusable bags while still retaining a choice at checkout. Industry experience in California has shown within a year
after ordinance implementation over 90% of consumers bring a reusable bag to the store or take no bag at all from
the store.
We believe it is critical all jurisdictions participating in the regional effort adopt the same carryout bag ordinance in
order avoid a patchwork of regulation. Industry experience has shown inconsistent regulation confuses consumers
and creates competitive disadvantages for retailers operating near neighboring jurisdictions, as well as for retailers
with multiple store locations in different jurisdictions. With grocery companies averaging a 1% profit margin any
unnecessary impact, such as a regulatory disadvantage, can have dramatic negative impacts.
It should be noted there are various claims about the negative impacts of carryout bag ordinances which are not
accurate. Most notably is the claim that reusable bags can cause illness, which is simply untrue. The reports making
these claims, which were been paid for by the plastics industry, have been fully debunked.
Thank you for your consideration and please consider CGA a partner as you encourage reusable bag use.
Sincerely,
TIMOTHY M. JAME
Manager, Local Go ;r ent Relations
cc: Members, Los Gatos Town Council
Mr. Greg Larson, Town Manager, Town of Los Gatos
CALIFORNIA GROCERS ASSOCIATION 1 1215 K Street, Suite 700 1 Sacramento, CA 95814 -3946 1 T: 916.448,3545 1 F: 916.448.2793 1 w .cagrocemxom
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