After Threat From Florida's Retail Lobby, Surfside to Overturn Its Plastic Bag Ban

A mere six weeks ago, Surfside commissioners passed a sweeping ban of most single-use plastics in an effort to rid the town of plastic bags, utensils, and dinnerware. At the time, Mayor Daniel Dietch praised the ban as a reasonable measure that would help reduce plastic pollution in the oceanside community.

"It's a statement this town can make, and it's going to have a cascading effect," Dietch said at a June meeting.

But only a few days after Surfside passed the ordinance, the town received a threatening letter from the Florida Retail Federation, a powerful lobbying group that represents big-box retailers including Publix, Target, and Walmart. Because state law prohibits local municipalities from regulating plastic bags, the Florida Retail Federation hinted it could sue Surfside to overturn the ban — and then recoup attorneys' fees, costs, and damages from local taxpayers.

"This ordinance as enacted is unlawful, and we respectfully urge the Town to repeal it," the federation's letter stated.

Facing the threat of a costly court battle, Surfside commissioners last week gave an initial vote to repeal the town's plastic bag ban. Commissioner Tina Paul was the only lawmaker to vote against the repeal.

"You set an example if you step back," she said at a meeting August 13. "That's what they [the Florida Retail Federation] want — they want you to step back."

The ordinance repealing the plastic bag ban would go into effect if it passes a second reading at the town's commission meeting September 10.

Across the state, towns that have passed bans on plastic bags are rushing to overturn their ordinances. Last week, Gainesville city commissioners and Palm Beach council members separately voted to repeal their respective bans on plastic bags and polystyrene foam containers after receiving similar letters from the Florida Retail Federation. St. Augustine Beach lawmakers are also looking at undoing the city's ban on plastic bags.

Local lawmakers have grown especially skittish after a Florida appeals court recently ruled against the City of Coral Gables, which passed a Styrofoam ban in 2016, shortly before a state law made it illegal for local municipalities to regulate polystyrene food containers. Last Wednesday, the Third District Court of Appeals upheld the state law, essentially siding with the Florida Retail Federation.

Coral Gables also has a ban on plastic bags that is being challenged by the Florida Retail Federation in court. The same appeals court heard oral arguments in December 2017 but has not yet issued a ruling on whether the city's ban violates state law.

In Surfside, commissioners expressed concern that if the Florida Retail Federation were to sue over the ban on plastic bags, the town could lose and be liable for millions of dollars in attorneys' fees and other costs.

"I am very uncomfortable with the position that they're putting us in because they're on the right side of the law," Dietch said at the meeting last week. "We live in a coastal community, and it's our responsibility to safeguard our community... Having said all that, we're in a jam."

Commissioner Michael Karukin suggested Surfside overturn its ban on plastic bags, wait until the appellate court makes a decision about Coral Gables' ordinance, and then perhaps reinstate the bag ban.

"Why take on that risk?" he said. "Let's say Coral Gables loses — then we saved ourselves gazillions of dollars. If Coral Gables wins, then we can put our law back in place."

Despite the initial controversy of Surfside's ban on plastic bags, during which multiple residents spoke out for or against the ordinance, the latest town meeting was poorly attended. Local activists Eliana Salzhauer was the only resident to speak during the public comment portion of the meeting.

"If we're actually going to pass these things, we have to stand behind them," she told commissioners. "What's the point in passing things and then rescinding them?"

Clarification: Surfside commissioners voted to repeal the plastic bag ban during a first reading at a town meeting August 13. The ordinance repealing the ban will not go into effect unless it is passed during a second reading at the town's upcoming meeting September 10.