Florida’s “City Beautiful” taking its fight over takeout container litter to FL Supreme Court

Venetian pool in Coral Gables. Miami-Dade Convention and Visitors Bureau photo

The City Commission of Coral Gables, which has spent three years trying to ban polystyrene (trade name: Styrofoam) containers, has decided to take its case to the Florida Supreme Court.

The coastal community on Miami’s southern end is nicknamed the “City Beautiful,” and local leaders were concerned about a growing litter problem. The city commission passed the ordinance prohibiting food service providers and stores there from selling or using expanded polystyrene containers in 2016.

Then, after lobbying by state retailers, the Florida Legislature passed a statewide law banning any local government from passing regulations on packaging materials such as polystyrene and plastic bags after January 1, 2016. The law specifically caught Coral Gables in its crosshairs, because the city had passed its ban in February 2016.

The Florida Retail Federation, a lobbying trade group, then filed a lawsuit against Coral Gables, but a local trial court upheld the city’s law. That ruling stood until the case went to the Third District Court of Appeal, which ruled against the city’s polystyrene ban earlier this month. That’s why the city is now headed to the Florida Supreme Court.

Several Florida cities passed ordinances banning the use of single-use plastic bags earlier this year, but they’ve reversed themselves after receiving a stern warning from the Florida Retail Federation reminding them that it’s still against state law to ban plastic. If the local governments didn’t repeal their bans, the group said, they “could be responsible for paying attorney fees, costs and damages to any person that successfully challenges the unlawful ordinance in a court of law.”

James Miller, a spokesman with the Florida Retail Federation, said: “It is not our desire to pursue litigation, but we also don’t agree with local governments picking and choosing which laws they want to follow. We understand that the local leaders may not like a particular law, but it is their responsibility to uphold them.”

Miriam Ramos, the city attorney for Coral Gables, said that she has received calls from officials from two Florida cities and several environmental groups who say they are willing to back in the city by filing amicus briefs as they prepare their case for the Florida Supreme Court.

“What’s important to the city of Coral Gables is not necessarily important to the people of Tallahassee, or Jacksonville, or Orlando, or even the city of Miami,” Ramos said about the importance of local government having the autonomy to make its own rules. “We’re all very different communities, and that’s the idea of local governments.”

The Coral Gables City Commission also adopted a resolution urging the Florida Legislature to repeal three state statutes that the local court ruled were unconstitutional: A 1974 law that says that the packaging of products made or sold in the state may not be controlled by government rule, regulation or ordinance; a 2008 law that prohibits local governments from regulating disposable plastic bags; and the 2016 rule barring local  regulation of polystyrene.

The city commission is also asking for Gov. Ron DeSantis’ help, citing his comment earlier this summer when he vetoed a bill that banned plastic straws. DeSantis said that “the state should simply allow local communities to address this issue through the political process.”

“He’s acknowledged that this should be an issue of local control with respect to plastic straws, so why are plastic bags and polystyrene any different?” says Ramos. “They should also be left to local control.”

A number of groups, represented by the nonprofit environmental law firm Earthjustice, have filed friend-of-the court briefs in the long-running case. They include Surfrider Foundation, the Campaign to Defend Local Solutions, the League of Women Voters of Florida, Legal Scholars, 1000 Friends of Florida, ReThink Energy Florida, Florida Wildlife Federation, Save the Manatee Club, and the Center for Biological Diversity.

Also complicating legal matters is a sweeping new law that got little attention when it passed the 2019 Legislature (HB 829). It says that if a local government passes an ordinance on something that’s already covered by a state law, and the state or some other entity (like a multinational corporation with deep pockets) sues, the local government has to pay attorney’s fees for the winning side.

“The state legislature has done nothing to stop the wasteful plastics that are choking our waterways and wildlife, and instead passed laws to prevent local governments from doing the right thing,” said Bonnie Malloy, Earthjustice attorney. “If legislators are serious about protecting Florida’s waters they need to address plastic pollution or step aside and let local governments lead the way.”

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