Coral Gables

Coral Gables sued over plan to keep Styrofoam ban

A green-back heron perches on a Styrofoam cooler lid.
A green-back heron perches on a Styrofoam cooler lid. Miami Herald File

Coral Gables was so determined to stop the use of Styrofoam cups and food containers in the city that when the Florida Legislature passed a law prohibiting municipalities from banning polystyrene products, the City Commission effectively backdated its own ordinance.

Now retailers who oppose the ban have sued the city, saying the commission “attempted to time travel by resorting to a creative but ultimately illegal gamesmanship.”

The Florida Retail Federation filed the lawsuit to keep the city from enforcing the ban, arguing that the city’s ordinance is unlawful regardless of when it was approved. The federation sued on behalf of its members including Super Progreso, a company that owns a 7-Eleven franchise in the Gables.

In December, the Gables commission gave tentative approval to an ordinance that would ban the use of expanded polystyrene — Styrofoam — by city vendors, at special events and by food service providers. 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 starting Jan. 1, 2017.

The City Commission approved the ban in an effort to increase sustainability efforts in the city. Commissioners argue that because polystyrene, popularly called Styrofoam, is not easily recyclable and takes hundreds of years to biodegrade that the ban is for the benefit of residents. Opponents argue that outright bans are not the solution and that the product has some recyclable uses.

But final approval didn’t come until Feb. 9. State law requires two public hearings and votes on ordinances before they can take effect, according to Florida Statute 166.041.

In March, the Florida 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. Cities that had a ban in place before Jan. 1, such as Miami Beach, were allowed to keep their laws.

On March 15, 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 Miami-Dade home rule charter, which gives municipalities in the county certain special powers to create their own rules for governing.

In its lawsuit, filed July 14, the federation argues that the decision wasn’t an emergency. “The commission passed the March 2016 emergency ordinance as an emergency ordinance for no other reason than to avoid the dual-reading requirement of Florida Statutes,” the complaint read.

City Attorney Craig Leen said the city plans to fully defend the ordinance. He said the commission acted properly in attempting to keep the ban active.

“The city was well within its rights in passing the polystyrene ordinance and its plan to enforce it,” Leen said. “Cities and counties should be allowed to regulate to protect the environment.”

Commissioner Vince Lago, who has pushed for the ban and wrote to Gov. Rick Scott asking him to reconsider the state bill, said he’s disappointed by the lawsuit and said companies should consider alternatives to Styrofoam. The city has stopped purchasing polystyrene products and companies like Starbucks utilize alternatives for cups and other packaging.

“I haven’t received a call from any businesses opposing the ordinance but I have received calls from lobbyists,” Lago said. “The business community here understands the importance of being sustainable and protecting the environment.”

The issue has affected other municipalities across the state including Orlando and North Miami who proposed or passed Styrofoam bans after the state’s cut-off date. Meanwhile other South Florida municipalities, including Bal Harbour, Bay Harbor Islands and Key Biscayne, which had bans in effect before the end of 2015, can continue to enforce them. Miami-Dade County also approved a ban on the product’s use in county parks last month.

Lance Dixon: 305-376-3708, @LDixon_3