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HomeMy WebLinkAboutAgenda Report - September 2, 2015 C-11AGENDA ITEM 'm I I CITY OF LODI COUNCIL COMMUNICATION TM AGENDA TITLE: Authorize the Mayor to Sign a Letter in Response to the San Joaquin County Grand Jury Report on Unattended For -Profit Donation Bins MEETING DATE: September 2, 2015 PREPARED BY: Business Development Manager RECOMMENDED ACTION: Authorize the Mayor to sign a letter in response to the San Joaquin County Grand Jury report on unattended for-profit donation bins. BACKGROUND INFORMATION: The 2014-2015 San Joaquin County Grand Jury's Report "Charity Begins at Home Unattended For -Profit Donation Bins Proliferate Across County' (Exhibit 1) seeks to address identified concerns regarding unattended donation bins in San Joaquin County and its seven cities, including: • an increased number of unattended for-profit collection bins (14 sites countywide); • unfair competition with non-profit charities for donations; • private property rights; and • additional burden on local code enforcement staff The report claims that the lack of comprehensive and uniform regulation of the donation bins amongst San Joaquin County and its incorporated cities has resulted in confusion and the inability of local enforcement staff to appropriately address the land use. The report recommends that each jurisdiction enact ordinances that regulate the donation bins. The attached letter responds to each finding of the Grand Jury report, as well as the recommendation that Lodi has sufficient authority under existing local regulations to address this matter. FISCAL IMPACT: Not applicable. FUNDING AVAILABLE: Not applicable. Ad4n Brucker Business Development Manager Exhibit 1 - 2014-2015 San Joaquin County Grand Jury's Report Exhibit 2 — Lodi Municipal Code Section 17.36.110 Recycling Facilities Exhibit 3 — Letter from USAgain dated June 22, 2015 APPROVED: -- - 1_ tephen hirabauer, City Manager CITY COUNCIL BOB JOHNSON, Mayor MARK CHANDLER, Mayor Pro Tempore DOUG KUEHNE JOANNE MOUNCE ALAN NAKANISHI CITY OF L OD I CITY HALL, 221 WEST PINE STREET P.O. BOX 3006 LODI, CALIFORNIA 95241-1910 (209) 333-6700 / FAX (209) 333-6807 www.lodi.gov September 2, 2015 Honorable Lesley D. Holland, Presiding Judge San Joaquin County Superior Court P.O. Box 201022 Stockton, CA 95201 STEPHEN SCHWABAUER City Manager JENNIFER M. FERRAIOLO City Clerk JANICE D. MAGDICH City Attorney Subject: 2014-2015 Grand Jury Report #1410: Charity Begins at Home Unattended For - Profit Donation Bins Proliferate Across County The City of Lodi has reviewed the subject report and provides the following response: Findings F1.1 San Joaquin County and its cities do not have regulations that specifically address the placement, maintenance, and monitoring of unattended donation bins. Response: Lodi Municipal Code (LMC) Section 17.36.110 Recycling Facilities "...provides locational and operational standards for the establishment of various types and sizes of commercial recycling facilities..." including small collection facilities. LMC Section 17.78 Definitions describes a "small collection facility" as "a facility... where the public may donate, redeem or sell recyclable materials...". Recyclable materials include reusable items. Donation bins, whether for-profit or non-profit; attended or unattended, are subject to compliance with these standards. F1.2 City and county ordinances can effectively clarify who is responsible for removing unwanted donation bins and protect property owners from liability. Response: LMC Section 1.10 Administrative Enforcement Provisions identifies municipal code enforcement procedures, which include the identification of, and notice to, the responsible party, whether property owner or otherwise. F1.3 Local ordinances can provide cities and the county with stronger control over unattended donation bin placement and assist to enforce them efficiently. Response: At this time the City of Lodi finds its existing municipal code to be sufficient for regulating the subject land use. Response to 2014-2015 Grand Jury Report #1410 Page 2 F1.4 Donations to out-of-state for profit operators divert donations from local not-for-profit operators, which diminishes their ability to benefit local communities. Response: The City of Lodi strongly supports and encourages the efforts of local non-profit charitable organizations and for-profit businesses alike. California Welfare and Institutions Code § 150 to 153 identifies specific identification and disclosure requirements for for- profit and non-profit donation bins. Recommendation By December 1, 2015, San Joaquin County and its incorporated cities should enact ordinances that regulate unattended donations bins Response: The City of Lodi has adequate enforcement authority to address the problems identified by the Grand Jury. Accordingly, the City of Lodi respectfully declines the Grand Jury's recommendation. Please direct any questions to Adam Brucker, Business Development Manager at (209) 333-6874 or abrucker(a)Iodi.gov. Sincerely, Bob Johnson, Mayor EXHIBIT 1 San Joaquin County Grand Jury Charity Begins at Home Unattended For -Profit Donation Bins Proliferate Across County 2014-2015 Case No. 1410 Summary San Joaquin County residents give cash and donated goods each year valued in the millions of dollars. The United Way of San Joaquin County alone collects nearly $4 million in cash donations annually. County residents also give to area charities that operate retail outlets where donated goods are sold to support the agencies' local charitable programs. Often residents drop off their donations at collection points located in area parking lots. In recent years, unattended donation bins placed by for- profit companies have been appearing in cities and unincorporated areas of San Joaquin County. These unattended donation bins are having a significant negative impact on donations to non-profit charities. There are no ordinances in San Joaquin County and its cities to enable authorities to regulate these for-profit unattended donation bins that are often simply dropped on private property without the owner's consent. In addition, there are safety Photo of an unattended donation bin in San Joaquin County. EXHIBIT 1 and liability issues that are not addressed. The 2014-2015 Grand Jury decided to investigate the proliferation of these for-profit unattended donation bins. Among the most important findings are: • San Joaquin County and its cities do not have ordinances that specifically address the placement and monitoring of for-profit unattended donation bins • These unattended donation bins are operated by for-profit companies that make millions of dollars nationwide, exporting textiles for sale at a profit in Africa and South America • The profits go to out-of-state corporations that pay no local or state taxes and provide no benefit locally Among the most important recommendations are: • San Joaquin County and its seven cities should enact ordinances to regulate for-profit unattended donation bins • Ordinances should require operators to obtain written consent from property owners before placement of any unattended donation bins, and limit the liability of property owners and their agents who remove unwanted bins from their property Background Several non-profit charities, such as Goodwill Industries of San Joaquin Valley, operate parking lot collection sites. Their sites are operated with an attendant present and with the permission of the property owner. There is little chance someone making a donation at one of these sites can be confused about who they are donating to or if that agency is a non-profit or for-profit entity. In recent years, for-profit companies have moved into San Joaquin County. Although it is unclear exactly how many companies are involved, bins owned b two for-profit operators, USAgain and Y p p � g Discover Books, can be found throughout the Unattended bin, Roselawn Avenue, east of County. Collection bins operated by the Mission Road, Stockton companies are unattended, often include only small signs to indicate donations are not tax deductible, and do not spell out that donations are being exported to foreign countries. EXHIBIT 1 In 2011, USAgain, according to the company's website, collected 60 million pounds of clothing from more than 10,000 donation sites in 17 states, including California. Much of the donated material was sold for a profit in Africa and Latin America. Despite the proliferation of the for-profit unattended collection bins, the Grand Jury found no uniform city or county ordinances to regulate the placement and maintenance of for-profit bins. Neither are there ordinances protecting property owners nor removal companies hired in cases where bins are placed on private property without permission and the property owner elects to have the bin removed. Unattended donation bins can attract graffiti, vandalism, and become a public nuisance. They can also be safety hazards when people crawl inside to keep warm or to remove items from the bins. In February 2012, then -Assemblywoman and now Sen. Cathleen Galgiani, D -Stockton, introduced Assembly Bill 1978 in the California Legislature. It would have required the written consent of a property owner before a collection bin could be placed on his or her property. It also provided a mechanism for the removal of the unapproved bin without liability to the property owner. The bill had bipartisan support. In August 2012, the bill passed the Assembly on a 70-8 vote and the Senate on a 21-13 vote, but 1 _ 1 the next month it was vetoed by Gov. Jerry Brown. "I supportUnattended bin, Country the author's goal of giving property owners more tools to enforce Club Boulevard, Stockton their property rights," the governor said in his veto message. "However, I believe the language can be more narrowly crafted to avoid unintended consequences to local charities and nonprofits." Gov. Brown did not spell out what "unintended consequences" concerned him. Some non -profits, such as D.A.R.E America and Planet Aid, had voiced opposition, arguing that the bill would have unfairly restricted their fundraising efforts. Reasons for Investigation The Grand Jury chose this issue because of concerns about the proliferation of unattended, for- profit collection bins in San Joaquin County and its cities. It was discovered that non-profit charities, such as Goodwill Industries and The Salvation Army, do not operate unattended donation bins. Further, they place their collection bins only with the written consent of property Witnesses testified that donations to some non-profit charities have decreased in the last few years, a change partially blamed on the proliferation of for-profit bins. The Grand Jury was told some donors believe that their donations are being made to non-profit charities. No local jobs are created by these for-profit companies, although USAgain has many employees at its Hayward warehouse. Donations placed in unattended bins create profits for out-of-state organizations and create problems when they are placed on private property without written consent from property owners. Many property owners want them removed, but are unable to contact the operator. They are hesitant to pay the cost of removal in case they are held liable for the bin. Other property owners choose to ignore the bin rather than pay for its removal. Method of Investigation Materials Reviewed • Grand Jury surveys of code enforcement officials in San Joaquin County, Stockton, Lodi, Manteca, Lathrop, Escalon, Ripon, and Tracy ■ Grand Jury survey of 12 property owners who have for-profit unattended donation bins located on their premises • State Assembly Bill 918 (2010), now identified as Welfare and Institutions Code, §150-153 (www.leginfo.ca.gov/cgi-bin/displaycode?section=wic&group=00001-01000&file=150-153) • State Assembly Bill 1978 (2012), vetoed by the governor • Stockton, Lodi, and Tracy building codes • Informational handouts from Goodwill Industries ■ Elk Grove and Ceres ordinances governing the placement of unattended collection bins Interviews Conducted • San Joaquin County code enforcement staff ■ Lathrop code enforcement staff • Stockton Police Department code enforcement staff • Goodwill Industries of San Joaquin Valley, Inc., and Shelter Thrift and Donation Center management staff ■ Security staff at Lowe's on Hammer Lane in Stockton • Property owners who have had for-profit donation bins on their property Sites Visited • Central Valley headquarters of Goodwill Industries of San Joaquin Valley, Inc. ■ Shelter Thrift and Donation Center retail outlet in Stockton ■ Fourteen for-profit unattended donation bin sites including locations in Tracy, Manteca, Lodi, Lathrop, Stockton, and the unincorporated county Facts, Findings, and Recommendations The 2014-2015 Grand Jury reviewed responses from San Joaquin County and all of its cities to a Grand Jury survey sent in October 2014. These responses show that cities and the county government have reduced staffing in their code enforcement and local police departments. Although code enforcement officers are generally responsible for code violations, limited staff means that they only investigate when there are complaints. Some California cities, including Elk Grove, Rancho Cordova, and Ceres, have comprehensive ordinances that regulate unattended donation bins. Stockton and Lodi have ordinances directed at recycling collection sites, but not for unattended donation bins. Different codes and policies in San Joaquin County and its cities have contributed to confusion about unattended donation bins in parking lots and on street corners. Survey responses from San Joaquin County and its cities revealed a lack of ordinances that specifically address unattended donation bins, or simply classifies them as recycling centers (see appendix). In its response to the Grand Jury survey, San Joaquin County officials, for example, said that "a donation box, whether or not for profit, placed on the site of an existing retail establishment would be considered an accessory use to the business operation." However, more than half of the property owners questioned in an informal survey found they had not given permission for the placement of unattended donation bins on their premises. Different approaches to for-profit collection bins give a flavor of the various methods some cities have used, for example: • Lodi ordinances refer to "recycling facilities", but do not specifically mention items often given as charitable donations such as books, shoes, household goods, and, clothing. • Tracy cites Welfare and Institutions Code, § § 150 to 153, which sets forth definition of donation bins as well as disclosure requirements that must be printed on each donation bin to provide information to consumers. That information must include the name of the organization benefiting from the donation, contact information, and how their donations would be used. Each bin also is required to have clear information on whether the donation bin is owned by a charitable or commercial (for-profit) entity. Findings FIA San Joaquin County and its cities do not have regulations that specifically address the placement, maintenance, and monitoring of unattended donation bins. F1.2 City and county ordinances can effectively clarify who is responsible for removing unwanted donation bins and protect property owners from liability. F1.3 Local ordinances can provide cities and the county with stronger control over unattended donation bin placement and assist to enforce them efficiently. FIA Donations to out-of-state for profit operators divert donations from local not-for-profit operators, which diminishes their ability to benefit local communities. Recommendation RI By December 1, 2015, San Joaquin County and its incorporated cities should enact ordinances that regulate unattended donation bins, including: • Shall require written consent from property owners before placement of any donation bin on private property Shall obligate the bin owner to maintain it Shall obligate the bin owner to hold property owners and their agents harmless from liability who remove unwanted bins from their property • Shall require donation bins meet or exceed the requirements found in the California Welfare and Institutions Code, §§150 to 153 ■ Shall adopt sanctions for any violations of the ordinance provisions Shall require owners of donation bins that do not have IRS Code 501(c)(3) status to pay a permit fee to generate income to help off -set ordinance enforcement efforts Conclusion Unattended donation bins operated by for-profit organizations are unsightly and can become safety hazards. They deprive local charities of donations that benefit our community, providing services and jobs. They generally do not make clear that the bins are placed by for-profit companies, which confuses donors making charitable donations. Understaffed code enforcement offices and confusion about whose responsibility it is to remove unwanted bins has led to lack of action. Implementation of local ordinances is an important tool in preventing this problem and will generate additional income to the county and its cities that could go toward code enforcement efforts. Disclaimers Grand Jury reports are based on documentary evidence and the testimony of sworn or admonished witnesses, not on conjecture or opinion. However, the Grand Jury is precluded by law from disclosing such evidence except upon the specific approval of the Presiding Judge of the Superior Court, or another judge appointed by the Presiding Judge (Penal Code Sections 911, 924.1 (a) and 929). Similarly, the Grand Jury is precluded by law from disclosing the identity of witnesses except upon an order of the court for narrowly defined purposes (Penal Code Sections 924.2 and 929). Response Requirements California Penal Code Sections 933 and 933.05 require that specific responses to all findings and recommendations contained in this report be submitted to the Presiding Judge of the San Joaquin County Superior Court within 90 days of receipt of the report. The San Joaquin County Board of Supervisors as well as the city councils of Stockton, Manteca, Tracy, Lodi, Lathrop, Ripon, and Escalon shall respond to each Finding and Recommendation contained in this Report. EXHIBIT 1 Mail or hand -deliver a hard copy of the response to: Honorable Lesley D. Holland, Presiding Judge San Joaquin County Superior Court P.O. Box 201022 Stockton, CA 95201 Also, please email the response to Ms. Trisa Martinez, Staff Secretary to the Grand Jury at grandjjj y sicourts.org Appendix CODE ORDINANCES FOR PERMITS COMPLAINT ENFORCEMENT DONATION BINS REQUIRED DRIVEN STAFFING SAN JOAQUIN 2 full-time, None Yes Yes COUNTY 1 part-time ESCALON 2 full-time None Yes Yes LATHROP 1 part-time None No Yes LODI 2 full-time Yes - SEC 17.36 May require Yes deposit MANTECA 2 full-time, None Yes Yes 1 part-time RIPON 1 part-time None No Yes STOCKTON 26 full-time, No - SMC 16.20.020, Yes, on private Yes 2 part-time Table 2-2 property TRACY 4 full-time, AB918, Sec. Yes, on private Yes. 1 part-time 10.08,1070, W&I property Code §150-153 EXHIBIT 2 17.36.110 - Recycling facilities. This section provides locational and operational standards for the establishment of various types and sizes of commercial recycling facilities, in compliance with Article 2 (Land Use and Development Standards). Recycling facilities shall comply with the following standards: A. Reverse Vending Machines. Reverse vending machines shall comply with the following standards: 1. Accessory Use Only. The machines shall be installed as an accessory use in compliance with the applicable provisions of this development code, and shall not require additional parking. 2. Location Requirements. If located outside of a structure, the machines shall not occupy required parking spaces, and shall be constructed of durable waterproof and rustproof materials. 3. Maximum Size. When located outdoors, the area occupied by the machines shall not exceed fifty square feet, including any protective enclosure, nor eight feet in height. 4. Signs. Signs shall not exceed a maximum area of four square feet for each machine, exclusive of operating instructions. 5. Hours of Operation. The machines shall have operating hours which are consistent with the operating hours of the primary use. 6. Lighting. The machines shall be illuminated when needed to ensure comfortable and safe operation. B. Small Collection Facilities. Small collection facilities shall comply with the following standards: 1. Location Requirements. Small collection facilities shall: a. Not be located within fifty feet of any parcel zoned or occupied for residential use; and b. Be set back at least ten feet from any public right-of-way, and not obstruct vehicular or pedestrian circulation. 2. Maximum Size. A small collection facility shall not occupy more than three hundred fifty square feet nor three parking spaces, not including space that would be periodically needed for the removal of materials or exchange of containers. 3. Appearance of Facility. Collection containers and site fencing shall be of a color and design that is compatible and harmonious with the surrounding uses and neighborhoods. 4. Operating Standards. Small collection facilities shall: a. Not use power -driven processing equipment, except for reverse vending machines; b. Accept only glass, metal or plastic containers, paper, and reusable items; and c. Use containers that are constructed with durable waterproof and rustproof material(s), secured from unauthorized removal of material, and shall be of a capacity sufficient to accommodate materials collected and the collection schedule. 5. Signs. Signs may be provided as follows: a. Identification signs are allowed with a maximum area of fifteen percent for each side of the structure or twelve square feet, whichever is greater. In the case of a wheeled facility, the side shall be measured from the ground to the top of the container; b. Signs shall be both compatible and harmonious with the character of their location; and Page 1 C IC EXHIBIT 2 c. Directional signs, consistent with Chapter 17.34 (Signs) and without advertising message, may be approved by the director if found necessary to facilitate traffic circulation, or if the facility is not visible from the public right-of-way. 6. Parking Requirements. No additional parking space shall be required for customers of a small collection facility located in the established parking lot of the main use. One space shall be provided for the attendant, if needed. Mobile recycling units shall have an area clearly marked to prohibit other vehicular parking during hours when the mobile unit is scheduled to be present; and C. Use of parking spaces by the patrons and the attendant shall not reduce available parking spaces below the minimum number required for the main use unless a parking study shows that existing capacity is not fully utilized during the time the recycling facility would be on the site. Large Collection Facilities. A collection facility that is larger than three hundred fifty square feet, or on a separate parcel not accessory to a primary use, shall comply with the following standards: 1. Location Requirements. The facility shall not abut a parcel zoned for residential use 2. Container Location. Any containers provided for "after hours" donation of recyclable materials shall be permanently located at least one hundred feet from any residential zoning district, constructed of sturdy, rustproof material(s), have sufficient capacity to accommodate materials collected, and be secured from unauthorized entry or removal of materials; and 3. Screening. The facility shall be screened from public rights-of-way, by solid masonry walls or located within an enclosed structure. 4. Setbacks, Landscaping. Structure setbacks and landscaping shall be provided as required for the applicable zoning district. 5. Outdoor Storage. Exterior storage of material shall be in sturdy containers that are secured and maintained in good condition. Storage, excluding truck trailers, shall not be visible above the height of the required solid masonry walls. 6. Operating Standards. The site shall be maintained clean, sanitary, and free of litter and any other undesirable materials, and shall be cleaned of loose debris on a daily basis; Dust, fumes, odor, smoke, or vibration, above ambient levels, shall not be detectable on adjoining parcels. Processing Facilities. Processing facilities shall comply with the following standards: Location Requirements. The facility shall not abut a parcel zoned or occupied for residential use. 2. Limitation on Use. Light processing facilities are limited to baling, briquetting, compacting, crushing, grinding, shredding, and sorting of source -separated recyclable materials and repairing of reusable materials. 3. Maximum Size. A light processing facility shall not exceed forty-five thousand square feet of floor or ground area, may have up to an average of two outbound truck shipments of material each day, and shall not bale, compact, or shred ferrous metals, other than beverage and food containers; Page 2 EXHIBIT 2 A heavy processing facility exceeds the standards for a light processing facility, and may perform functions not allowed at light processing facilities. 4. Container Location. Containers provided for "after hours" donation of recyclable materials shall be permanently located at least one hundred feet from any residential zoning district, constructed of sturdy, rustproof materials, have sufficient capacity to accommodate materials collected, and be secured from unauthorized entry or removal of the materials. 5. Screening. The facility shall be screened from public rights-of-way, by solid masonry walls or located within an enclosed structure. 6. Outdoor Storage. Exterior storage of material shall be in sturdy containers or enclosures that are secured and maintained in good condition. Storage, excluding truck trailers, shall not be visible above the height of the required solid masonry walls. 7. Operating Standards. Dust, fumes, odor, smoke, or vibration, above ambient levels, shall not be detectable on adjoining parcels. (Ord. No. 1869, § 2, 2-20-2013) Page 3 a?b: CAN, cA ! Pr NWS , June 22, 2015 Bob Johnson, Mayor Mark Chandler, Mayor Pro Tempore Doug Kuehne, Councilmember Joanne Mounce, Councilmember Alan Nakanishi, Councilmember P.O. 3006 Lodi, CA 95241 RE: San Joaquin Grand Jury Report — Case No. 1410 Dear Mayor Johnson and Councilmembers, 4' ` ' a inIT 3 use It ct��I RECEIVED r JUN 2 9 2015 CITY CLERK USAgain, LLC ("USAgain") would like to take the opportunity to respond to the San Joaquin Grand Jury Report concerning unattended donation bins in San Joaquin County. USAgain agrees with the Grand Jury's recommendation that San Joaquin and its cities enact ordinances that regulate unattended donation bins; however, we have issue with some of the findings contained in the report. For background, USAgain is a for-profit textile recycling company with two division offices in California, one in Hayward and the other in Anaheim. We own and operate clothing collection and recycling bins on public and private property for the purpose of diverting useful items from landfills and returning them to the stream of commerce. USAgain works with communities across the country, on our own and in concert with the Secondary Materials & Recycled Textiles Association (SMART), to advocate and pass regulations that recognize and create standards for the placement and operation of unattended donation bins. We are confident that with meaningful regulation, as provided in the SMART's model ordinance (see enclosure), the cities in San Joaquin County can balance the interests and concerns of the community while promoting the best practices for the operation of unattended donation bins. San Joaquin County and its cities should adopt ordinances to regulate unattended donation bins, regardless of whether they are operated by a non-profit or for-profit entity. USAgain agrees with the recommendations of the Grand Jury and we already incorporate many of these recommendations into our business model: 7 USAgain has written agreements with all of our site hosts, signed by the property owner or the owner's agent; ■ USAgain meets the identification and disclosure requirements of Welfare and Institution Code, §150 to 153; • USAgain maintains our bins and are not only responsible for ensuring the cleanliness and professional appearance of our bins, but also within a 10ft area of our bins; EXHIBIT 3 USAgain maintains liability insurance for $1,000,000; and In the event that authorization is withdrawn, USAgain will remove our bins within 10 business days. USAgain, however, disagrees with many of the findings contained within the Grand Jury Report. USAgain was not included in the investigation and was unable to comment on the benefits of unattended donation bins operated by for-profit companies First, unattended donation bins offer a convenient recycling service for residents, accessible 24 hours a day and 7 days a week. Although the common notion is that non-profit charities already collect most unwanted clothing, the facts do not support that line of thinking. In 2012, according to the EPA, 14.3 million tons of textiles were generated, but only 15.7 percent were recovered for reuse and recycling — wasting nearly 12 million tons. There need to be significant changes to textile recycling options currently provided to communities and unattended donation bins fill this void by providing a convenient solution to help divert textile waste and help the environment by extending the lives of textiles. Second, unattended donation bins help reduce costs to the community. It costs millions to dispose of textiles in landfills, paid through curbside collection, transport, and tipping fees. The average charge for unloading or dumping waste at a landfill is about $44 per ton. On average, the United States generates 82 pounds of textiles per year per person with 85% (or 70 pounds per person) going to landfills. That means for an urban area with a population of 50,000 pays for the handling and disposal of 1,750 tons of textiles annually. The pounds diverted by unattended donation bins represent big savings for communities. Third, unattended collection bins create jobs both here in the United States and abroad. The textile recycling industry creates local jobs from collection, to sorting for wholesale, to the thriving secondhand clothing sales business. In California, USAgain has two division office, one in Hayward and the other Anaheim. Like most companies, we make a substantial investment of time, money, and labor in the local community to keep our operations running effectively. On a global scale, only 10-20% of all clothing collected in the United States is domestically sold. The majority of all clothing collected by charities and other organizations is an export commodity. Around 30 percent of these exported clothes are remanufactured into industrial wiping cloths, 21 percent may be converted back to raw fiber, while the remainder becomes part of the ever-growing second-hand clothing market overseas. We understand that based on the Grand Jury's Report, Council may want to regulate unattended donation bins and we support that effort. For that purpose, we have provided the SMART model ordinance which balances the benefits of unattended donation boxes against the interest and concerns of the community. 2 EXHIBIT 3 Please do not hesitate to reach out to USAgain if you have any questions or need any additional resources. Sincerely, 66. k Sheila Caplis Government Relations Manager & Legal Counsel USAgain, LLC 1555 W. Hawthorne Lane, 4W West Chicago, IL 60185 630-293-1239 x1012 (office) 630-293-1237 (fax) s.caplis@usagain.com CC: Steve Schwabauer, City Manager Janice Magdich, City Attorney Encl: SMART Model Ordinance EXHIBIT 3 Since 1932 SECONDARY MATERIALS` rWfRT AND RECYCLED TEXTILES The Association of Wiping Materials, Used Clothing and Fiber Industries Key Elements of an Effective Clothing Collection Bin Ordinance SMART Association Recommendations As a growing number of local governments propose measures that aim to regulate organizations operating clothing collection bins (herein referred to as bins) that collect unwanted clothing, shoes, textiles and other household items, the leading organization of the textile recycling industry, Secondary Materials and Recycled Textiles Association (SMART),offers recommendations to local governments for the drafting of effective ordinances. SMART is frequently approached by officials seeking language for clothing collection bin regulations. While every city has different methods for regulating local businesses, which makes it difficult to craft a one -size -fits -all approach, SMART has identified a number of key recommendations to achieve effective and community sensitive ordinances. While some local governments look to simply clarify existing policies, others are discussing a limit or outright ban on the presence of bins provided to the community by for-profit entities. Unfortunately, those measures in the latter category have unintended consequences for the communities they serve. Banning or limiting the ability of for-profit textile recyclers to operate clothing collection bins severely limits contributions that private sector businesses are making to meet national economic, philanthropic and environmental objectives. For-profit textile recyclers create tens of thousands of jobs throughout local and international communities and create a vital stream of revenue for numerous well-respected charities. -For-profit textile recyclers routinely partner with local charities to collect unwanted items through the use of convenient collection bins bearing the charity's name and logo. This partnership allows the charities to share in the profit from the proceeds of collecting unwanted clothing, shoes, textiles and other household items in communities. As a number of charities have stated on the record, these arrangements provide essential, risk-free funding that is difficult to secure through other sources. Therefore, policy measures that limit for-profit textile recyclers from operating these bins would devastate many charities' bottom line. Clothing collection bin operators and other for-profit textile recyclers also play a vital role in national recycling activities by diverting nearly 4 billion pounds of used clothing and other textiles from landfills each year. Unfortunately, as Environmental Protection Agency data show, the average household only recycles approximately 15% - a fraction of the total textile waste generated annually. This reality has prompted public officials in Massachusetts, New York City, Arizona and elsewhere to work with for- profit organizations to institute textile recycling programs. These officials understand that the unique efficiencies and infrastructure that the private sector offers are absolutely necessary to successful waste reduction efforts. Below are recommendations provided by SMART: EXHIBIT 3 RECOMMENDATIONS ➢ An effective clothing collection bin ordinance SHOULD NOT ban bins operated by for-profit recyclers. Broadly held misconceptions about the textile recycling industry have led some communities to consider banning bins provided by for -profits, with critics charging that some companies aren't as transparent in their charitable affiliation arrangements as they should be, that some fail to properly maintain their bins, and that donations create debris and clutter in public places. It is a reality that there are non - SMART member companies that do in fact merit the critiques of detractors. SMART member organizations have approved a robust Code of Conduct that is designed specifically to prevent these outcomes and believe that these non-compliant companies are the "bad actors" that should be weeded out by local government regulation. However, imposing outright bans on all for-profit recyclers actually threatens the public good. For example: Banning clothing collection bins operated by all for -profits will significantly increase the stream of textile waste in disposal sites and increase the cost to local governments to operate local landfills. For-profit textile recyclers create positive tax bases across the United States by creating thousands of jobs, and by creating much needed revenue streams for worthy charities nationwide. Banning bins operated by for-profit textile recyclers will eliminate these meaningful contributions. We believe that communities should work with local industry representatives to craft measures that simultaneously address concerns and enable textile recycling to thrive. ➢ Ordinances SHOULD NOT impose artificial limits on the number of clothing collection bins per organization. While some local governments have moved to impose outright bans on bins, others have called for limits on the number of bins allowed per organization. Although bin operators must ensure that bins meet all applicable public zoning, health and safety standards, strict limits on the number of bins per organization means reducing the number of convenient locations for the public to donate and recycle their used clothing and household items. ➢ Ordinances SHOULD impose disclosure and transparency requirements on clothing collection bin operators. Ordinances should require bins to display helpful information for the public, local government, property owners and bin operators, including: o Contact information (name/address/telephone/email; url) for person, business entity, or organization responsible for placing and maintaining the bin; o A statement making clear that those dropping off goods may contact the appropriate local operator for additional information regarding the manner in which the items will be used, sold, or dispersed; o A copy of the bin permit, if one is required, should be made available to local government officials, as requested. EXHIBIT 3 ➢ Ordinances SHOULD discourage the use of deceptive or ambiguous labels/logos on clothing collection bins that falsely imply an underlying affiliation with a charitable organization when one does not exist. ➢ Ordinances SHOULD require clothing collection bin operators to obtain written consent from a property owner or owner's agent prior to placing clothing collection bins. Though it is imperative that a bin operator should be required to obtain consent in order to preserve the respectability of the textile recycling industry and to uphold property rights, an "owner's agent" should be broadly defined to include the authorized local agent at a chosen bin location. Many times large multinational corporations anchor sites where bin operators will choose to locate. It is nearly impossible to obtain a signed document from the CEO of these companies or their fiscal agent located at company headquarters. An owner's agent should include a local property manager/agent or authorized general store manager, so that bin operators are realistically able to obtain the consent necessary, and to avoid undo and unwieldy consent thresholds. ➢ Ordinances SHOULD specify appropriate management/maintenance requirements to prevent clothing collection bins from becoming a threat to public health and safety. Maintenance requirements should be reasonable and realistic and should provide clothing collection bin operators the opportunity to respond to any potential issues. Requirements may be general, e.g."Bins shall be serviced and emptied as needed or within 48 hours of a request by owner or owner's agent." • Ordinances SHOULD require organizations to provide a Certificate of Liability Insurance of at least $1 million. • Ordinance should require bin operators to secure each clothing collection bin with a tamper proof lock. • Ordinances should require bin operators to maintain the aesthetic presentation of the bins including fresh paint, readable signage, and general upkeep to maintain community standards. • In addition it should be clearly posted on the bin that nothing should be left outside of the bin, and provide a clear and visible phone number to follow up on maintenance issues. ➢ Ordinances SHOULD require clothing collection bin operators to provide property owners or owner's agents with an attended, working phone number and be required to respond to any bin maintenance complaints within 24 hours of receiving notification during regular business hours. ➢ Ordinances SHOULD provide both property owners and clothing collection bin operators important civil liability protections by: • Giving property owners or owner's agent the right to rescind consent for a bin to be placed on their property, provided written notice of the rescission is given to the bin operator within a specified period of time prior to the bin being removed. EXHIBIT 3 Shielding property owners or owner's agents from civil liability from a clothing collection bin operator for the removal of an unauthorized bin or where removal is necessary to comply with local zoning ordinances. Ensuring that a property owner, owner's agent or other entity that causes the unauthorized removal of a collection bin, despite valid written consent from the property owner at the time of removal, is civilly liable to the owner/ operator of the bin. ➢ Ordinances mandating the acquisition of permits SHOULD mandate the requirements be reasonable, affordable and manageable. Many communities require bin operators to obtain a permit before placing a bin. SMART supports the right of a community to require permits, yet the following recommendations to assure a reasonable, affordable and manageable process. • Information requested on a permit application SHOULD be straightforward and necessary. Examples include: o Contact information (name/address/telephone/email) for person, business entity, or organization applying for the permit o Proposed location/address where the bin is to be placed o Contact information (name/address/telephone/email) for owner or owner's agent of location where bin will be placed o Written consent from the property owner or owner's agent to place the bin on his or her property o Contact information (name/address/telephone/email) for individual placing the bin o Information as to the manner/ schedule for which the bin is to be emptied/maintained. • Permitting fees SHOULD NOT be cost -prohibitive. o A $25-$50 initial processing/application fee and $10 for each additional bin is a standard adopted by many local governments and are fees that SMART supports. Keeping permitting fees at a reasonable and non -cost prohibitive level will assure the availability of donation bins and increase textile recycling. Permits SHOULD remain in effect for at least one year. • Permitting agencies SHOULD be required to respond to applicants within a specific amount of time an&provide adequate justification if a permit is denied. • Organizations applying for a permit should be required to be registered with the appropriate state corporation regulatory agency. ➢ Local governments SHOULD provide for enforcement and abatement when certain key obligations are not met. Many local governments have opted to codify clothing collection bin ordinances within jurisdictional zoning provisions. SMART respects the ability of local government to determine the best statutory EXHIBIT 3 method for regulation, yet recommends that ordinances specifically provide for tangible enforcement and penalty provision for failure to meet ordinance provisions. Ordinances should have enforcement provisions for: • unlawful placement of bins • infringement on another permittee's location • failure to remove debris, graffiti or bulk items in allotted time ■ failure to respond to maintenance requests in allotted time • violation by property owners or bin operators to adhere to permit provisions for initial location and removal of bins • to provide for legal protections for both property owners and bin operators SECONDARY RECOMMENDATIONS SMART also has the following suggestions for other less critical provisions that communities may wish to include in clothing collection bin ordinances: ➢ Local governments may wish to include language establishing that the purpose/intent of the measure is to establish procedures and requirements that: • Encourage the use of clothing collection bins to provide free, easy and convenient public solutions for community textile recycling. • Adopt textile recycling programs to reduce the amount of textile and household waste going to landfills and reduce landfill dumping fees. • Implement these no cost private sector recycling solutions to meet local and statewide waste reduction mandates. • Support textile collection and recycling programs that provide funding to charitable organizations and stimulate local economies. • Ensure transparency about how these contributions will be used. ■ Promote the community's health, safety and welfare. ➢ Local governments may wish to specify appropriate dimensions/bin specifications. Officials may wish to work with local industry representatives to recommend specifications that are consistent with industry standards. 5 EXHIBIT 3 ➢ Local governments may wish to include a definitions section identifying key stakeholders, terminology, etc. ➢ Local governments should endeavor to harmonize ordinance terminology with that used by other local governments when at all possible. There are many cases where it is difficult to determine the applicability of an existing clothing bin ordinance because of differences in the terminology used by various local governments to describe/define these bins (e.g. some refer to bins as "temporary structures," while others deems them "dumpsters" or "accessory units," etc.). This ambiguity, in many cases, makes it difficult for the bin operator and often times even for local officials to identify the appropriate requirements and may result in inadvertent ordinance violations. To address this concern, local governments when at all possible should aim to harmonize terminology with that which is being most commonly used by other local governments. Questions? Please contact the Secondary Materials Recycled Textiles Association at 443-640-1050 or via e-mail: sniartinfo2kingnigmt.org or visit our website at www.smartasn.orl;. EXHIBIT 3 AN ORDINANCE AMENDING THE MUNICIPAL CODE OF THE CITY/VILLAGE OF [INSERT HERE] RECYCLING COLLECTION BINS SUMMARY An Ordinance amending the Municipal Code of the City/Village of [INSERT HERE] establishing rules, regulations and registrations of Recycling Collection Bins. LEGISLATIVE INTENT The City Council/Village Board notes that the citizens of the United States disposes of more than 242.96 million tons of solid waste each year, 55%-65% of which comes from single family residences. With a national recycling rate of just 33.8% such disposal unnecessarily burdens the state's landfills and contributes to pollution and climate change by emitting greenhouse gases such as CO2 and methane. It is the intent of this ordinance to support and encourage, in a responsible manner, the placement and use of attended and unattended recycling collection bins. These bins are most commonly used to collect for recycling, re -sale or re -use general household goods such as clothing, shoes, books and small appliances. When enacted, this ordinance will protect the environment by increasing community recycling and reducing the burden on local landfills, and will improve the economy by creating more jobs and provide goods for reuse and recycling. Definitions. I2 c L Jing Collection in An attended or unattended receptacle, trailer or container made of metal, wood, steel or similar material for permanent or temporary use, designed or intended for the collection of unwanted clothing, shoes, textiles, books and other household items. Site Host The owner or lawful occupant (or their respective representatives) of the site of a Recycling Collection Bin within the City. Permittee Any organization, firm or other entity that owns and receives a permit to operate a Recycling Collection Bin in the City pursuant to this Chapter. §xxx. Permit required; dates of issuance, expiration, response /:Il:lr�t3 A. It shall be unlawful to erect, place, maintain or operate any Recycling Collection Bin without first obtaining a permit issued by the City. B. The City shall approve permittee's application if such application fulfills the application requirements under §xxx. Qualifications of Permittee and Form of Application. C. A permit issued under this Chapter shall be valid for one year and renewable for one-year periods thereafter. D. Recycling collection bins owned and/or operated by one entity for the benefit of another entity require the contact information for both entities on the permit application. §xxx. Fee required. A. Initial Application (one-year period) e.g. $25.00. B. Renewal Applications (one-year period) e.g. $25.00. C. Sticker fee (one year period) e.g. $10.00. §xxx. Qualifications of Permittee and Form of Application. In order to qualify as a permittee under this Chapter, an applicant must either be (1) a public charity exempt from taxes under Section 501(c) (3) of the United States Internal Revenue Code, and in good standing with the State of xxx, or (2) a business in good standing with the State of xxx. The application for a Recycling Collection Bin permit shall require the following information from the applicant: A. If the applicant claims to be a qualified nonprofit entity, (1) a copy of the determination letter issued by the Internal Revenue Service stating that the applicant is a public charity exempt under Internal Revenue Code Section 501(c)(3), and (2) a certificate of good standing issued by the state office that regulates corporations.. If the applicant is a business, a certificate of good standing issued by the Office of the Secretary of State of xxx. A certificate of good standing must not be older than 3 months at the time of application for a permit. B. Name, address and telephone number of contact person of the applicant. C. Written consent from the Site Host to place the Recycling Collection Bin on the property, including name, address and telephone number of the Site Host. D. Permittee must provide proof to the City of a Certificate of Liability Insurance of at least $1million covering permittee's Recycling Collection Bins. §xxx. Proof of Permit The City shall provide the permittee with one permit sticker for each approved permit. The permit sticker shall be placed in a conspicuous place in front of the recycling collection bin that is installed on the permitted property. The City will provide replacement stickers for (insert value) should the original sticker become damaged, fall off or disappear. §xxx. Management, Maintenance; Requirements 2 EXHIBIT 3 A. Permittee must maintain the aesthetic presentation of each recycling collection bin including fresh paint, readable signage and general upkeep. B. Permittee must provide to the Site Host a telephone number for requests to respond to recycling collection bin maintenance complaints. C. Permittee must respond to recycling collection bin maintenance complaints within 24 hours of receiving notification during regular business hours. D. Permittee must remove graffiti within 72 hours following receipt of notice of its existence. E. If a recycling collection bin becomes damaged or vandalized, it shall be repaired, replaced or removed within five days of receipt of notice of such condition. §xxx. Placement of Recycling Collection Bins A. Recycling Collection Bins shall be placed on the site in a manner that does not impede vehicular or pedestrian traffic flow. B. Recycling Collection Bins shall not be placed in the right-of-way and shall adhere to the set -back standards for the site where they are placed. C. Recycling Collection Bins shall not be placed in a required parking space (designated for handicap/disabled parking) or reduce the number of parking spaces below the minimum number required by local zoning codes. D. Recycling Collection Bins placed on sidewalks must allow for five (5) feet of pedestrian walkway in front of the Recycling Collection Bin. E. Recycling Collection Bins shall not be placed within the sight triangle of any intersection. §xxx. Information and Label Requirement for all Bins The front of every Recycling Collection Bin shall conspicuously display the following: (a) The name, address, telephone number and the Internet Web address of the Owner and Operator the recycling collection bin; (b) A statement, in at least two-inch typeface, that either reads, or "this collection bin is owned and operated by a nonprofit organization" or "this collection bin is owned and operated by a for-profit organization"; (c) If the recycling collection bin is owned by a non-profit organization, the front of the collection bin shall also conspicuously display a statement describing the charitable causes that will benefit from the donations; (d) If the recycling collection bin is owned by a for-profit company, the front of the collection bin shall conspicuously display a statement that reads "[name of company] is a for-profit company, deposits are not tax deductible"; Recycling collection bins operated by a for profit entity on behalf of or in conjunction with a non- profit organization shall have the name ,address, telephone number and web address of both entities on the front of the bin. W /:11:11113 (e) Recycling collection bins operated by corporate fundraisers or any entity placing and operating collection bin(s) for the benefit of another for-profit entity or non-profit entity shall abide by the requirements of (d) above and any additional guidelines and labeling requirements required under state law. §xxx. Reporting of Recycled Goods. The Permittee must report the total number of tons of goods diverted from the municipal waste stream in the city. Such reporting should be done on a quarterly basis to the City Clerk by letter or e-mail. §xxx. Violations and Penalties. A. In addition to any other penalties or remedies authorized by law, any permittee which violates any provision of this Chapter shall be subject to a penalty of $250 for each violation, which includes: 1. Unpermitted placement of a Recycling Collection Bin; 2. failure to adequately respond to maintenance request pursuant to this Chapter; 3. failure to maintain Recycling Collection Bins pursuant to this Chapter; 4. failure to adhere to Recycling Collection Bin placement and removal provisions pursuant to this Chapter; and S. Failures to adhere to all permit requirements pursuant to this Chapter. B. If a permittee is found to have willfully violated the provisions of this Chapter and ignores mitigation, on more than 3 occasions in a calendar year, the permittee shall, in addition, be deemed ineligible to place, use or employ a recycling collection bin within the City pursuant to this Chapter for a period of five years, and the City may remove any or all of such permittee's recycling collection bins upon 30 days advance notice. § xxx Liability; protections A. A Site Host shall have the right to rescind consent for a recycling collection bin to be placed on the property, provided written notice of the rescission is provided to the permittee, as provided in their agreement but in no event less than 10 business days prior, to the recycling collection bin being removed. B. The Site Host will be held harmless by the permittee for the removal of an unauthorized recycling collection bin or where removal is necessary to comply with local zoning ordinances. C. A Site Host that causes the unauthorized removal of a permitted recycling collection bin pursuant to this chapter is civilly liable to the permittee of that recycling collection bin. D. Permitees shall maintain general liability insurance that covers any claims or losses due to the placement, operation or maintenance of the recycling collection recycling collection bin. 4 CITY COUNCIL BOB JOHNSON, Mayor MARK CHANDLER, Mayor Pro Tempore DOUG KUEHNE JOANNE MOUNCE ALAN NAKANISHI CITY OF LODI CITY HALL, 221 WEST PINE STREET P.O. BOX 3006 LODI, CALIFORNIA 95241-1910 (209) 333-6700 / FAX (209) 333-6807 www.lodi__gov September 2, 2015 Honorable Lesley D. Holland, Presiding Judge San Joaquin County Superior Court P.O. Box 201022 Stockton, CA 95201 STEPHEN SCHWABAUER City Manager JENNIFER M. FERRAIOLO City Clerk JANICE D. MAGDICH City Attorney Subject: 2014-2015 Grand Jury Report #1410: Charity Begins at Home Unattended For - Profit Donation Bins Proliferate Across County The City of Lodi has reviewed the subject report and provides the following response: Findings F1.1 San Joaquin County and its cities do not have regulations that specifically address the placement, maintenance, and monitoring of unattended donation bins. Response: Lodi Municipal Code (LMC) Section 17.36.110 Recycling Facilities "...provides locational and operational standards for the establishment of various types and sizes of commercial recycling facilities..." including small collection facilities. LMC Section 17.78 Definitions describes a "small collection facility" as "a facility... where the public may donate, redeem or sell recyclable materials...". Recyclable materials include reusable items. Donation bins, whether for-profit or non-profit; attended or unattended, are subject to compliance with these standards. F1.2 City and county ordinances can effectively clarify who is responsible for removing unwanted donation bins and protect property owners from liability. Response: LMC Section 1.10 Administrative Enforcement Provisions identifies municipal code enforcement procedures, which include the identification of, and notice to, the responsible party, whether property owner or otherwise. F1.3 Local ordinances can provide cities and the county with stronger control over unattended donation bin placement and assist to enforce them efficiently. Response: At this time the City of Lodi finds its existing municipal code to be sufficient for regulating the subject land use. Response to 2014-2015 Grand Jury Report #1410 Page 2 F1.4 Donations to out-of-state for profit operators divert donations from local not-for-profit operators, which diminishes their ability to benefit local communities. Response: The City of Lodi strongly supports and encourages the efforts of local non-profit charitable organizations and for-profit businesses alike. California Welfare and Institutions Code § 150 to 153 identifies specific identification and disclosure requirements for for- profit and non-profit donation bins. Recommendation By December 1, 2015, San Joaquin County and its incorporated cities should enact ordinances that regulate unattended donations bins Response: The City of Lodi has adequate enforcement authority to address the problems identified by the Grand .fury. Accordingly, the City of Lodi respectfully declines the Grand Jury's recommendation. Please direct any questions to Adam Brucker, Business Development Manager at (209) 333-6874 or abrucker Jodi. ov. Sincerely, b Johnson, Mayor