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HomeMy WebLinkAboutordinance.council.06-2023(IIIII IIIII IIIII Illfllllll IIIII IIIII IIII II I III IIIII IIIII IIIII IIII IIIII IIII RECEPTION#: 694112, R: $43.00, D: $0.00 ORDINANCE N0.06 DOC CODE: ORDINANCE Pg 1 of 7, 04/06/2023 at 12:43:57 PM SERIES OF 2023 Ingrid K. Grueter, Pitkin County, CO AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING CHAPTER 13.24 OF THE CITY OF ASPEN MUNICIPAL CODE ENTITLED "WASTE REDUCTION" TO INCLUDE PROVISIONS RESTRICTING USE OF DISPOSABLE PLASTIC BAGS CONSISTENT WITH COLORADO HOUSE BILL 21- 1162 AND PORHIBITING THE USE OF CERTAIN PLASTIC MATERIALS. WHEREAS, the City Council for the City of Aspen has adopted policies and regulations, including the Ecological Bill of Rights, Mayor's Climate Protection Agreement, Aspen Sustainability Action Plan, and Aspen Area Community Plan, to protect the environment and the health of its citizens and visitors; and WHEREAS, the proliferation and expanding use of single -use plastics, including single - use plastic bags and Polystyrene products, also known in certain nomenclature as the trademarked name of StyrofoamTM, (collectively referred to as "single -use plastics") within the City is a threat to the health, safety, and welfare of residents and contrary to adopted City environmental and climate policies; and WHEREAS, the use of single -use plastics have severe environmental impacts on a local and global scale, including greenhouse gas emissions, litter, harm to wildlife, atmospheric acidification, water consumption, and solid waste generation; and WHEREAS, single -use plastics generally degrade and decompose at an extremely slow rate, where decomposition often takes over a hundred years, impacting the health of the natural environment, and WHEREAS, on October 11, 2011, the City Council adopted Ordinance No. 24, Series of 2011, which added a new Chapter 13.24 entitled "Waste Reduction" to the City of Aspen Municipal Code; and WHEREAS, the stated purpose of Ordinance 24, Series of 2011 was to reduce the cost to the City of solid waste disposal, and to protect our environment and our natural resources by banning the use of disposable single -use plastic bags and to mandate a fee for the use of paper bags at grocery stores; and WHEREAS, Ordinance No. 24, Series of 2011 has been effective in dramatically reducing the use of single -use plastic bags in Aspen for the last ten (10) years, and WHEREAS, Ordinance No. 24, Series 2011 imposed a fee of $.20 for each disposable paper bag provided to a customer by a grocer, and WHEREAS, on July 6, 2021, the Colorado General Assembly passed Colorado House Bill 21-1162, also known as the "Plastic Pollution Reduction Act" ("the Act") which imposed similar restrictions on the use of plastic bags as Ordinance No. 24, Series of 2011, expanded the applicability of plastic bag restrictions to other types of retailers, and additionally placed restrictions on the use of expanded polystyrene food containers effective July 1, of 2024, and WHEREAS, the City Council finds that restricting the use of single -plastics consistent with the Act will support adopted City environmental and climate policies, and mitigate the harmful effects of such materials on our natural environment, and WHEREAS, this ordinance is intended to replace Ordinance No. 24, Series of 2011, and amend Chapter 13.24 of the City of Aspen Municipal Code, to replicate the requirements of the Act regarding the remittance and distribution of fees collected pursuant to Chapter 13.24 of the City of Aspen Municipal Code and add restrictions called for by the Act on the use of expanded polystyrene food containers as part of the City of Aspen Municipal Code; and WHEREAS, the City Council has determined that the health, safety and welfare of the citizens, residents, and visitors of the City of Aspen will be served by this Ordinance, which will regulate the distribution of single -use plastic products within the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITYCOUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. Chapter 13.24 of the City of Aspen Municipal Code shall be amended as follows: 13.24.010— Definitions Section 13.24.010 shall be amended to include the definitions set forth in the Plastic Pollution Reduction Act, Colo. Rev. Stat. section 25-17-503, as it may be amended from time to time. 13.24.90 Repeal of Ordinance 24, Series of 2011 (1) Prior to May 1, 2023, the City shall retain its prohibitions on disposable plastic bags applicable to grocers established by Ordinance 24, Series of 2011 and set forth in sections 13.24.020 through 13.24.080 of the City of Aspen Municipal Code. (2) Ordinance 24, Series of 2011 shall be repealed effective May 1, 2023. 13.24.100 — Single -use plastic carryout bag prohibition (1) Subject to Section 13.24.110, on and after January 1, 2024, a store or retail food establishment shall not provide a single -use plastic carryout bag to a customer, except that a retail food establishment need not comply with this section if the retail food establishment: a. Prepares or serves food in individual portions for immediate on or off -premises consumption; and b. Is not a grocery store or convenience store. (2) (a) Subject to the carryout bag fee applied to single -use plastic carryout bags in section 13.24.110, a store or retail food establishment may provide a single -use plastic carryout bag to a customer on or before June 1, 2024, if the single -use plastic carryout bag was part of the store's or retail food establishment's inventory before January 1, 2024. (3) This subsection (2) is repealed effective September 1, 2024 13.24.110 — Carryout bag fee — disposition of money (1) (a) On and after May 1, 2023, and before January 1, 2024, a store may provide a customer with one or more recycled paper carryout bags or single -use plastic carryout bags at the point of sale only if the customer pays a carryout bag fee of twenty cents ($.20) per recycled paper carryout bag or single -use plastic carryout bag. For each carryout bag or single -use plastic carryout bag fee collected pursuant to this section, the shore shall: (I) Remit, in accordance with subsection (3)(d) of this section, sixty percent (60%) of the first ten cents ($.10) and the remainder of the fee to the City which shall use the remitted fee to pay: i. Administrative and enforcement costs incurred as a result of this section ii. Costs associated with any recycling, composting, or other waste diversion programs and related outreach and education activities, and (II) Retain forty percent (% 40) of the first ten cents ($.10) of the fee, which portion of the fee does not count as revenue for the purpose of calculating sales tax. (III) The carryout bag fee set forth in subsection (1)(a) of this section does not apply to a customer that provides evidence to the store that the customer is participating in a federal or state food assistance program. (b) This subsection (1) is repealed, effective September 1, 2024. (2) (a) On and after January 1, 2024, a small store may provide a customer with one or more recycled paper carryout bags at the point of sale only if the customer pays a carryout bag fee of twenty cents ($.20) per recycled paper carryout bag. For each carryout bag or single -use plastic carryout bag fee collected pursuant to this section, the shore shall: (I) Remit, in accordance with subsection (3)(d) of this section, sixty percent (60%) of the first ten cents ($.10) and the remainder of the fee to the City which shall use the remitted fee to pay: i. Administrative and enforcement costs incurred as a result of this section ii. Costs associated with any recycling, composting, or other waste diversion programs and related outreach and education activities, and (II) Retain forty percent (% 40) of the first ten cents ($.10) of the fee, which portion of the fee does not count as revenue for the purpose of calculating sales tax. (b) The carryout bag fee set forth in subsection (1)(a) of this section does not apply to a customer that provides evidence to the store that the customer is participating in a federal or state food assistance program. (c) (I) Beginning January 1, 2024 and ending June 1, 2024, a store may provide a customer with a single -use plastic carryout bag at the point of sale for the carryout bag fee described in subsection (2)(a) of this section only if the single -use plastic carryout bag is within the store's remaining inventory pursuant to section 13.24.100(2)(a). The store shall remit the fee collected pursuant to this subsection pursuant to subsection (2)(a) of this section. (II) This subsection (2)(c) is repealed effective July 1, 2024. (3) In providing carryout bags for a fee pursuant to this section a store shall: (a) For each customer provide on the customer's transaction receipt a record of the number of carryout bags provided as part of the transaction and the total amount of fees charged for the carryout bags provided, itemized by type of carryout bag; (b) Not refund to the customer any portion of the carryout bag fee, either directly or indirectly, or advertise or otherwise convey to customers that any portion of the carryout bag fee will be refunded; (c) Conspicuously display a sign in a location inside or outside the store, which sign alerts customers about the carryout bag fee; and (d) (1) On a quarterly basis starting April 1, 2024, remit from the total amount of carryout bag fees collected in the previous quarter the amount that is owed to the City's finance department. A store need not remit carryout bag fees collected in any quarter in which the collected fees total less than twenty dollars ($20.00). The store shall retain those collected fees until the store has more than twenty dollars ($20.00) worth of collected fees to remit and shall remit those fees as part of the next quarterly remittance. 13.24.120 — Prohibitions on use of expanded polystyrene food containers (1) Except as provided in subsection (2) of this section, effective January 1, 2024, a retail food establishment shall not distribute an expanded polystyrene product for use as a container for ready -to -eat food. (2) If a retail food establishment purchased expanded polystyrene products before January 1, 2024, the retail food establishment may distribute any remaining inventory of the expanded polystyrene products then purchased for use as containers for ready -to -eat food until the inventory is depleted. 13.24.130 — Voluntary Opt — In Any store or business with a City of Aspen Business license may voluntarily opt into the provisions of this Chapter and apply the ban and carryout bag fee to its business by applying with the City of Aspen Environmental Health Department. 13.24.140 — Audits (1) Each Store shall maintain accurate and complete records of the carryout bag fees collected, the number of single use plastic carryout bags and recycled carryout bags provided to customers, the form and recipients of any notice required pursuant to this Chapter, and any underlying records, including any books, accounts, or invoices, or other records necessary to verify the accuracy and completeness of such records. It shall be the duty of each grocer, store, and retail food establishment to keep and preserve all such documents and records, including any electronic information for a period of three (3) years from the end of the calendar year of such records. (2) If requested, each store, and retail food establishment shall make its records available for audit by the City Manager or designee during regular business hours in order for the City to verify compliance with the provisions of this Chapter. All such information shall be treated as confidential commercial documents. 13.24.150 - Enforcement - possible penalties. (1) Violations of any of this Chapter shall subject a store and retail food establishment to the penalties set forth herein: (a) If it is determined that a violation has occurred, the City shall issue a wanting notice to the store or retail food establishmcnt for the initial violation. (b) If it is determined that an additional violation of this chapter has occurred within one (1) year after a warning notice has been issued for an initial violation, the City shall issue a penalty assessment against the violator. The penalty shall not exceed: i. One hundred dollars ($100.00) for the first violation after written warning ii. Two -hundred dollars ($200.00) for the second violation after written warning iii. Three -hundred dollars ($300.00) for the third violation in the same calendar year as the first and second violation. iv. All subsequent violations shall require a mandatory court appearance by the violator, and such penalty as may be determined by the Court pursuant to Section 1.04.080. (c) No more than one (1) penalty assessment shall be issued upon the same violator within a seven (7) day period. (d) If a payment of any amounts of the carryout bag fee to the City is not received on or before the applicable due date, penalty and interest charges shall be added to the amount due in the amount of: i. A penalty of five percent (5%) of total due, not to exceed ten dollars ($10.00) each month. ii. Interest charge of one percent (1 %) of total penalty per month. (2) The City may seek injunctive relief to enforce a violation of this Chapter against a store or retail food establishment. 13.24.160— Exemptions (1) Nothing in this Chapter prohibits or limits the use of any material used in the packaging of a product that is regulated as a drug, medical device, or dietary supplement by the food and drug administration in the United Statement Department of Health and Human Services under the "Federal Food, Drug, and Cosmetic Act", 21 U.S.C. Sec. 321 et seq., as amended, or any equipment and materials used to manufacture such products. (2) Retail food establishments located within a school shall be exempt from the provisions of this Chapter. Section 2: Any scrivener's errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Section 3: This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the resolutions or ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 4• If any section, subsection, scntence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. INTRODUCED AND READ, as provided by law, by the City Council of the City of Aspen on the 28h day of February 2023. ATTEST: L", �1. Nicole Henning, City Clerk Torre, Mayor FINALLY, adopted, passed and approved this 14th day of March, 2023. ATTEST: Nicole Henning, City Cle k APPROVED AS TO FORM: Torre, Mayor James R True, City Attorney