An ordinance that would have banned the sale of polystyrene food packaging in Hermosa Beach has been referred back to the city staff after some council members claimed it was ambiguous and would be difficult to enforce.
Approval, most likely by the same 3-2 vote that tentatively OK’d the matter two weeks earlier, seemed likely Tuesday night until Councilman Patrick “Kit” Bobko asked City Attorney Michael Jenkins, “How do you enforce an unclear ordinance?”
“We can modify the ordinance to make it more specific,” Jenkins said. “We’re not going to enforce it unless we’re sure.”
Bobko, who -- along with Councilman Michael DiVirgilio -- has opposed the matter since it was introduced nearly two years ago, wasn’t placated. Reading from the five-page text of the ordinance, he focused on a paragraph that defines the types of products that would be banned.
“...Extrusion blow molding...” he said, referring to one process used in producing polystyrene. “I don’t know what that is,” appearing to suggest that others might find it similarly hard to grasp.
At another point, he said “I’m thoroughly confused. How can we identify it ... if we don’t know what it is?”
Council members had initially approved the ban on March 27, making Tuesday’s final vote seem almost like a formality. But it didn’t work out that way. Much of the confusion centered around the definition of “single-use containers,” what constitutes “prepared” foods and the significance of a type of polystyrene which carries a “#6” recycle code.
Coming in at just under an hour, debate on the matter was only half as lengthy as that of the previous meeting. But at times it was just as testy.
Jenkins, defending the ordinance, said it would “send a message that you don’t buy or use polystyrene products.”
But Councilman Peter Tucker, a ban supporter, said “How will we enforce it? What is clear plastic? What is exempt?”
Howard Fishman, in his last meeting as mayor before passing that title to Jeff Duclos, who had been mayor pro tem, said “if the code enforcement officer sees a #6, we have a clear violation.”
But Bobko pushed the “prepared foods” issue, asking “If I buy a carton of milk, is that a prepared food?” Jenkins responded that milk cartons are typically not made of polystyrene. As he has at past meetings,
Bobko said the proposal would “punish businesses” and would offer no guarantees that products banned in Hermosa Beach would not still be brought in from other cities.
“Anybody can still walk into town with a 6-foot stack of chicken wings and dump them in a trash can in our city,” he said. “This is worse than I thought it was.”
After about 50 minutes of discussion, Fishman moved to finalize the ban as initially approved in March, but Tucker offered a substitute motion to send the matter back for further study, saying “we do need to get the wording correct.”
That motion, which takes precedence over the initial one, passed 3-2, with Bobko and DiVirgilio joining Tucker in seeking the delay.
The discussion followed by one day the receipt of a letter from Sarah Sheehy, director of Local Government Relations for the California Grocers Association. The six-paragraph letter asked council members to reconsider banning “’clear polystyrene...’ as defined in this ordinance, represents a majority of the containers used to carry out...products...
“This type of plastic is very recyclable and keeps food safe and fresh... Alternative packing is much more expensive to provide...,” she wrote.
Duclos and DiVirgilio asked Pam Townsend, who had been a member of the group that created the ordinance if, during the drafting, prepared foods in markets were being considered, as well as take-out foods from restaurants.
“We were mostly looking at prepared foods,” she said. Townsend is a senior planner in the city’s Community Development Department.
Phil Friedl, former chairman of the Green Task Force which had worked toward creation of the ordinance, told the council “single-use containers,” such as those used for takeout orders, were the initial target.
“That was how we started with this issue,” he told the council. “Single-use containers.”
Bobko said local markets, which receive foods from distributors elsewhere, would likely be affected.
“How do you explain this to Vons and Ralphs and Fresh & Easy (which all have stores in Hermosa Beach),” he said. “Does it mean someone will have to go to Redondo Beach to buy a carton of strawberries? I just don’t get it. I don’t think this is what we intended to do.”
Tucker said he feared not being specific as to which materials were banned and which were not “could lead to a guessing game.”
Under terms of the rotation of council offices, Duclos will be mayor and Bobko mayor pro tem until Jan. 22, 2013.