Coral Gables

Court upholds Coral Gables’ Styrofoam ban

An appeals court has ruled against Coral Gables and thrown out its ban on Styrofoam food containers.
An appeals court has ruled against Coral Gables and thrown out its ban on Styrofoam food containers. AP

A judge has upheld Coral Gables’ ban on Styrofoam products, ruling that a new state law preventing the city from enforcing the ban was unconstitutional.

“Recognizing that courts should not second guess the political and police power of other branches of government, the court will allow the city its prosecutorial discretion to apply the city ordinance,” Miami-Dade Circuit Judge Jorge Cueto wrote.

The Florida Retail Federation filed a lawsuit last July to keep the city from enforcing the ban, arguing that the city’s ordinance was unlawful and the city’s efforts to backdate approval of the ban was “illegal gamesmanship.” The federation sued on behalf of its members including Super Progreso, a company that owns a 7-Eleven franchise in the Gables. In his order Cueto denied the federation’s motion for summary judgment.

“We’re disappointed in the outcome and we are speaking to our members regarding an appeal,” Samantha Padgett, the federation’s vice president and general counsel, said in a statement.

In December 2015, the Gables commission gave tentative approval to an ordinance banning the use of expanded polystyrene — Styrofoam — by city vendors, at special events and in take-out food containers. Violators could be fined, starting at $50 and increasing to $500 after a third violation in a one-year period. At first, violators would receive warnings, with full enforcement set to start at the beginning of 2016.

Final approval of the ordinance didn’t come until Feb. 9 as state law requires two public hearings and votes on ordinances before they can take effect.

In March 2016, the Legislature passed a bill that prevented municipalities from banning the use of Styrofoam take-out containers and other products like plates, coffee cups and trays. The bill did not apply to cities that had a ban in place before Jan. 1, such as Miami Beach, Bal Harbour, Bay Harbor Islands and Key Biscayne.

Later that month, the City Commission passed an emergency ordinance declaring that its Styrofoam ban had actually taken effect back in December, when it was approved on first reading. Commissioners also cited the Dade home rule charter, which gives municipalities only in Miami-Dade County special powers to create their own rules for governing.

The home rule charter was cited multiple times in Cueto’s order and he argued that the city had the right to create the ban under the powers of the charter.

“One of the primary purposes of the home rule amendment is to prevent the Florida Legislature from enacting laws directed solely at Miami-Dade County or any one of its municipalities,” Cueto wrote.

The judge agreed that the state statute targeted Coral Gables as it was the only city to approve a polystyrene ban after the state’s Jan. 1, 2016 cutoff date.

“By choosing an exemption date of January 1, 2016, the Legislature created a classification scheme that bears no reasonable relationship to a legitimate state purpose,” Cueto wrote. “Local ordinances adopted prior to January 1, 2016 are not materially different than the city ordinance and there is no reasonable justification for giving them special preference.”

City leaders said Tuesday they consider it a win for Coral Gables and for local municipalities.

“It’s a tough stand to stand alone sometimes when you know you’re right. When you allow it and you don’t stand up for certain issues you get run over, over and over and over again,” Commissioner Vince Lago said.

In a related matter Tuesday, commissioners approved a resolution opposing another bill pending in the Legislature that would keep municipalities, counties and other local governments from regulating businesses unless they have been given specific approval from the Legislature.

“It’s something that should be of concern to the city and all local governments in Florida,” City Attorney Craig Leen said. “In my opinion, for business regulation, it abolishes home rule.”

Lance Dixon: 305-376-3708, @LDixon_3