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September 19, 2008 The Honorable Pete Hoffmann, Chairperson, and Council Members Page 3 legally use after September 2009. Compare this to the larger stores where most if not all of them will be able to use up their present stock within a year. Smaller stores,to take advantage of the economies of scale, are more likely to purchase and have on hand an excess of plastic bags extending beyond a year's supply. A review of the effective date of measures in other jurisdictions shows that with the exception of San Francisco, a longer transition time has been generally allowed. (For your information, San Francisco's ban became effective in six months for supermarkets and in 12 months for pharmacies. However,the SF ban only applies to supermarkets with gross annual sales in excess of$2 million, and retail pharmacies with at least five locations under the same ownership within the city of San Francisco. No small businesses are subject to the ban.) • Penalties—It is felt that the fine and community service penalty proposed in Bill 326 Draft 2 is too high. A more reasonable penalty provided in the pioneering San Francisco law, for example, is a fine not exceeding $100 for the first violation,up to a $500 fine for the third violation within a single year. In addition,as discussed at the August 27 Council meeting, the penalty section refers to"persons"being penalized, not"businesses." According to Corporation Counsel, this could result in any person employed by a business being cited under this section. For example, in the case of a supermarket, a clerk bagging the groceries in plastic bags could be cited and fined rather than the responsible management of the store. While this may seem an unlikely possibility, it could happen under the bill as written. A third issue with the penalty section is that it provides for fines collected under the section to be deposited in the County's Public Access, Open Space and Natural Resources Fund. Bill 326 Draft 2 provides that upon conviction, a person is sentenced to pay the fine and/or perform community service. Being"convicted" implies that this is a matter that will be taken up at District Court. Fines collected by the Court are kept by the State of Hawaii and are not available to the County. • Location in the Hawaii County Code—Bill 326 Draft 2 amends Chapter 20 of the Hawaii County Code, which deals with refuse and solid waste. Since the bill does not ban plastic from landfills or transfer stations, but rather bans the retail distribution of plastic bags, there is a question whether this is the appropriate section of the Code for such a provision. Instead, it might have been better placed in Chapter 14, General Welfare. OTHER CONCERNS The above concerns are specific to Bill 326 Draft 2 as passed by the Council. If a ban on plastic bags is desired as a statement of policy,these concerns could be addressed in a new bill.