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CM Informational 2 7-15-19 DATE: July 10, 2019 TO: JOHN P, BOHENKO, CITY MANAGER ES FROM: ROBERT P. SULLIVAN, CITY ATTORNEY RE: CITY COUNCILOR JOSH DENTON'S PROPOSAL ORDINANCE REGARDING DISTRIBUTION OF SINGLE-USE DISPOSABLES. This memorandum is in response to the City Council request for Legal Department review of the captioned ordinance which was submitted by Councilor Denton to the Council for consideration in June of this year. It will address only the issue of whether or not legal authority exists for the Council to adopt the ordinance.’ The ordinance presently under consideration (copy attached for ease of review) is actually the third iteration of ordinances submitted by Councilor Denton since January 2017 related to the regulation of single-use plastics. In each succeeding case the ordinances have become more refined to deal with perceived legal issues, most notably the lack of enabling legislation. A brief description of the current ordinance would be to say that it limits its scope of the regulation of single-use disposable plastic items to activities which take place on City property. The one exception to that limitation is the regulation of Styrofoam products (single-use polystyrene) throughout the City. In summary, this memorandum concludes that regulation of single-use plastic disposables on City property is within the authority of the City to accomplish. However, Tegulation of single-use plastic items throughout the community generally fails to come within the scope of the City’s authority for the reasons described in detail during prior iterations of the plastic regulatory ordinances. As described above, the reason that prior versions of the plastic regulatory ordinances have been found to be beyond the scope of the City's authority to enact is that there is insufficient State enabling legislation to provide the City with that power, The most recent draft of the ordinances, which is now at issue, addresses this lack of enabling legislation by limiting its regulatory authority to activities which take place “on City property.” The addition of this phrase {0 the regulation of plastic disposables creates an entirely new source of authority for the City Council to rely upon. Whereas prior drafts of the plastic regulatory ordinances have relied, or HARPSICITYCOUNPIaais i Dinance!tMemo 19 CR ys wns nance dock attempted to rely, on statutes providing the City with authority to regulate activities throughout the community, the current version relies upon the City’s authority to regulate conduet on land which it owns. ‘The City can regulate activities on its own property. The authority of the City to regulate its own property is described, among other places, in 14 NH 865; Local Government Law, a treatise written by Peter Loughlin, and in the case of Sherburne v. Portsmouth, 72 NH 539 (1904). Thus, those elements of the proposed ordinance which regulate plastic disposables on City-owned property seem to be within the authority of the City Council to adopt. This memorandum concludes differently with respect to the regulation of Styrofoam (polystyrene) cups and containers throughout the municipality, not limited to property of the City of Portsmouth. The lack of enabling legislation for such a measure'was thoroughly vetted during consideration of prior versions of the plastic regulatory ordinances with the conclusion being that there is insufficient State-enabling legislation for the City to regulate single-use plastics on a community-wide basis. Please see the memorandum dated June 6, 2013, addressed to office of the City Manager from the City Legal Department which reaches that conclusion. In faimess, it should be pointed out that a contrary view exists which suggests that the authority which the State has granted to the City under RSA 149:M and other statutes to regulate solid waste management might, in some manner, extend to regulating the use and sale of single-use plastic items. This is not a frivolous position. However, there has been no change in State law since City Legal Department concluded that itis not likely to be successful in ligation? Since there has been no substantive change in State law since those prior writings, it ‘would be inconsistent to now conclude thet enabling legislation does exist. Thus, we conclude that those portions of the most recent plastic regulatory ordinance which would seek to prohibit the use of single-use plastics on a City-wide basis are beyond the scope of the City to adopt or enforce. CONCLUSION For the foregoing reasons, the City Council is advised that those portions of the ordinance submitted by Councilor Denton which regulate single-use plastics on City property do appear to be within the authority of the City to enact, However, those, elements which relate to regulating the use of plastics on a City-wide basis are likely not within the scope of that authority. Moreover, the proposal and its contents contain drafting issues which should be resolved prior to introduction of the ordinance for first reading, whether the ordinance is introduced as submitted or otherwise. Attachment This memorandum will address only the legal authority question, not policy matters (which are within the ambit of the Council, spelling, grammar or syntax issues). Neither will the memo address ather legal issues such as the fact that the ordinance would send disposable materials to composting facilites in Maine, but not New Hampshire (interstate commerce). All of these types of issues wil be dealt with in drafting for first reading n the event that the City Council directs the ordinance to he brought in for frst reading. 2 The drafting of this memorandum was delayed to allow for recent the session of the legislature to address the issue, but the relevant law was not changed. HARPSICITYCOLNPIstic Bag Ontinane 80 9 OM ea p.999 5 RRS ve eayan 10 a 12 B 15 16 17 18 19 20 2a 22 23 25 26 CHAPTER 3 PUBLIC HEALTH ARTICLE X: DISTRIBUTION OF SINGLE-USE DISPOSABLES 3.X01: PURPOSE The City of Portsmouth recognizes that limiting the distribution of single-use disposables is necessary for the protection of both the environment of the municipality and the public health, safety, and welfare of its citizens. 3.X02: DEFINITIONS For the purpose of this Section, the following definitions apply: Composting Facility: a solid waste compost facility-pursuant to the Maine Solid Waste Management Rules: Composting Facilities, 06-096 CMR 410 or equivalent; the Maine\Hazardous Waste, Septage and Solid Waste Management Act, 38 M.R.S.A. §§ 1301 to 1319-Y or equivalent, and Maine's otherSolid Waste Management Rules or equivalents. Cost Pass-Through: the cost which must be collected by retailers from their Customers:when providing a Single-Use Carryout Bag or a Single- Use Cup. Customer: any Person obtaining goods from a Store. Food Service Establishment: any restaurant, take-out food establishment, or any other business that is required to obtain a valid food service license from the Public Health Department of the City of Portsmouth. Food Service Establishments do not include Nonprofit Food Establishments. Medical Facility: a business or nonprofit that has a primary purpose of providing medical services.