Last September, the Milpitas City Council reversed a previous council decision and quietly passed a bag ban that affected every business and citizen of Milpitas beginning on January 1, 2016.
However, in their hurry to pass a plastic bag ban, they made a critical error in the language of the ordinance that imposes a “minimum fee” for paper or reusable bags distributed to customers at the point of sale. Section II-5-4.00-part B of Ordinance 287 clearly identifies a limited time frame for any minimum fee as follows:
“B. On or before January 1, 2016, a retail establishment may only make recycled paper bags or reusable bags available to customers if the retailer charges a minimum of ten cents.” [Milpitas Ordinance 287]
Thus, according to the legally passed ordinance, on or after January 2, 2016 there is no such minimum fee requirement for paper and reusable bags distributed by Milpitas retailers at the point of sale.
However, this error has additional benefits to businesses. Part C of that same section indicates that only bags that are available for sale are required to be separately itemized on the sale receipt. This would, therefore, not apply to bags that are provided for free on or after January 2, 2016. And Section III-5-5.00 requires every retail establishment to track the daily number of bags sold for a minimum of 3 years. Again, this would not apply to bags that are provided for free on or after January 2, 2016.
The technical error in the Milpitas ordinance was discovered by Stop the Bag Ban, a citizen’s group in San Jose, California and was pointed out to the City in a letter sent on January 23, 2016. In that letter, the City was notified that their city brochure and website was misrepresenting the ordinance to businesses and the people by indicating that there is a 10 cent minimum bag charge in effect. However, to date, the City has not acknowledged their error, nor taken down their misinformation from their website.
The City of Milpitas could face a class action lawsuit. The city misrepresented what the ordinance states and forced retailers, without the proper legal basis, to charge shoppers a fee for paper and reusable bags. The argument that shoppers were unnecessarily hurt by this action could certainly be made as this fee (and the work to track it) amounts to millions of dollars in annual costs to businesses and citizens.
The City of Milpitas has four potential options:
- The city can choose to do nothing, and the bag ban will remain in effect but without a mandatory paper and reusable bag fee. However, the ordinance, as written, will remain confusing to anyone reading it, and will be a source of confusion for both the citizens and businesses of Milpitas. The city will obviously also have to change their messaging about the bag ban ordinance.
- The city can amend the ordinance to remove the minimum bag fee and all of the tracking requirements. (Hooray for businesses and the people!)
- The city can amend the ordinance to officially impose the bag fee. However, the city will have to go through a public process in which they need to defend why a paper bag fee is required, along with the burdens of tracking every bag sale. They would need to also address the time period between the initial ordinance (January 1) and the implementation of the updated ordinance.
- The city can repeal the ordinance, and put the bag ban on hold until the November 2016 elections to see how the statewide bag ban fares with voters (which is what they should have done in the first place).
Businesses and citizens of Milpitas should be outraged at the following:
- That the city reversed the current “free bag” status, and quietly passed a bag ban on the people, just 11 months before the statewide election (essentially nullifying the effect of the votes of the citizens of Milpitas). Note that citizens in Milpitas joined the 800,000 across the state to demand the statewide bag ban be put to a vote, only to be over-ruled by their own city council. The city council has effectively said “you are getting a bag ban anyway, no matter how you vote!”
- That the city imposed a new minimum bag construction, minimum bag fee, individual receipt tracking, and record keeping for 3 years on all paper bags for no reason. They did not have a single argument or evidence against paper bags being any sort of environmental or city concern. In fact, the paper bag penalties reveal that the bag ban is about control, and not about substance.
- That the city is now knowingly misrepresenting a city ordinance and has refused (so far) to even remove their misrepresentation from their website.
It is up to the citizens and businesses in Milpitas to stand up for their rights against this injustice and fraud. As in all cities, the bag banners and the city of Milpitas are counting on people remaining silent, which is why the bag ban was snuck through and was never put to a vote of the people. They are clearly counting on the voices of a vocal minority to take away the rights of the silent majority.
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Disclaimer: This article does not provide legal advice. Individuals who wish to challenge the city’s bag fee, should consult a licensed attorney for legal advice.