Single-Use Bag Ordinance Finalized, Takes Effect July 1

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Gadfly Attorney Threatens to Sue Over Restaurant Provision – After some discussion about a potential lawsuit, the Davis City Council unanimously approved the first reading of the single-use plastic bag ordinance that was originally passed on September 10, 2013.

The ordinance applies to all retail business in Davis and there is a 10-cent bag charge for paper bags and plastic bags that meet the specification of a reusuable bag.  The ordinance would be adopted on October 22, upon council approval, and would be effective on July 1, 2014. Staff would conduct business outreach efforts during the first quarter of 2014 to provide notice of the impending ordinance to affected businesses and to assist customers with compliance on an as-needed basis.

Stephen Joseph, representing the Save the Bag Coalition, sent a letter to the city asserting that the city is preempted from regulating restaurants.

“We do not believe that to be,” City Attorney Harriet Steiner told the council on Tuesday.  “We think that when we looked at the cases cited by Mr. Joseph, they do not stand for that proposition.  We are not aware of a reason at this point why the city would have to preempt restaurants as opposed to the other organizations that do food servicing with carry-out foods such as grocery stores.”

She noted that the San Francisco plastic bag case has already said that plastic bag bans are environmental regulations and therefore not preempted by the health and safety code.

The issue will continue to be litigated by the organization, but to date they have yet to prevail in any court of law.

“Mr. Joseph has threatened a lawsuit against the city, and every other city who would adopt such an ordinance,” Ms. Steiner said.  Mr. Joseph is lead attorney for the Save the Bag Coalition which is the plaintiff in most of the cases that have been filed around the state.

Ms. Steiner stated that she believed the ordinance would survive any legal challenge.

“It’s very hard to say exactly how much a lawsuit will cost. Depending on how this lawsuit would move forward, if it was filed, I would estimate that it would cost somewhere between $20 and $40 thousand to get through the trial court, but that could be wildly off in either direction.”

Mark Murray, from Californians Against Waste, also a Davis resident, stated that Mr. Joseph has been filing these lawsuits for years: “His strategy has been one of harassment and intimidation.  Ultimately, he has lost every suit that he has filed.”

However, Mr. Murray indicated that Mr. Joseph “did succeed in intimidating Carpenteria and a couple of other communities in pulling the restaurant provision from the ordinances.”

“I would hate to see you intimidated by this bully of an attorney who has misrepresented the facts and misrepresented the law in his letter to you,” Mr. Murray continued.  “In his letter to you, he cites the San Francisco case, he neglects to mention that he lost that case.  The Superior Court has already ruled in that case, and they ruled against him.”

Councilmember Brett Lee expressed some concern, “I don’t feel like I’m being intimidated necessarily, I think that if we just go ahead and enact an ordinance and have to deal with this sort of lawsuit, it’s sort of this piecemeal approach – every city is left to defend themselves against this entity out there doing this harassing lawsuit.”

Councilmember Lee suggested perhaps pausing the ordinance to see if an organization like CalPIRG would step in.  However, that suggestion did not gain traction and it seems likely that CalPIRG (California Public Interest Research Group) is well aware of these activities, as Mr. Joseph has filed suits across the state.

Councilmember Lucas Frerichs, however, suggested that there needs to be action at some point.  “We’ve taken an action, and now we want to hit the pause button,” he said.  “I respectfully disagree that we’re going to get an attorney with ‘deep pockets’ to take a break, take a rest on going after individual jurisdictions in the hopes that we can in the meantime get CalPIRG or some other grassroots organizations or individuals to sound the alarm or help stop his organization from going after individual jurisdictions, I just don’t think that’s going to be effective.  I think we should be moving forward.”

Councilmember Frerichs then moved the item and Mayor Joe Krovoza seconded it.

The mayor stated, “This is a very very slippery slope to receive one letter after a fantastic ordinance has been drafted and brought to us.  If we’re going to let people intimidate us out of a possible decision here, that sets an incredibly low bar to be able to slow us down on issues, especially in a case where the person bringing these suits is losing.”

“If they want to spend more money to battle our excellent city attorney on a well-crafted ordinance that other cities have approved, then they can throw their money away doing that,” he said.  “But I don’t want this council to be seen as a place where you can send one letter and threaten a lawsuit and we back off something that we know is right and is legally solid.”

Brett Lee would ultimately join with his colleagues on a 5-0 vote in support of the ordinance.  The ordinance will now go to a second reading on October 22 and will go into effect at the start of the next fiscal year on July 1, 2014.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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53 thoughts on “Single-Use Bag Ordinance Finalized, Takes Effect July 1”

  1. B. Nice

    My guess is that in the minds of some Mr. Joseph will rivale Mr. Granda’s hero status. If you are one of these warning you will find my next statement annoying. Do people really have nothing better or productive to do with their time and energy. (Yes Joseph worshiper’s I just gave you a perfect setup to say the restricting plastic bags is not productive and is waste of time and energy, you are welcome).

  2. davisite2

    Unintended consequences: excessive plastic bags will be asked for in markets at every visit until July and then hoarded. This will add many more bags to the environment. Those who can supermarket without difficulty outside of Davis in the course of their daily travels will do so if they can get plastic bags which they use now and will have replace by BUYING plastic bags to line their trash baskets and dirty diaper disposal.

  3. Growth Izzue

    B. Nice
    [quote]I just gave you a perfect setup to say the restricting plastic bags is not productive and is waste of time and energy, you are welcome[/quote]

    Thank you, I couldn’t of said it better myself.

  4. medwoman

    davisite2

    [quote]Unintended consequences: excessive plastic bags will be asked for in markets at every visit until July and then hoarded. This will add many more bags to the environment. Those who can supermarket without difficulty outside of Davis in the course of their daily travels will do so if they can get plastic bags which they use now and will have replace by BUYING plastic bags to line their trash baskets and dirty diaper disposal.[/quote]

    1) If people are hoarding them, perhaps it is because they perceive them as more valuable and will use each more times thus decreasing the number of bags released into the environment. I have no problem with use of the existing bags to the full extent of their usefulness. My hope is that people will eventually get to the point where they adopt the use of alternatives thus decreasing the demand for plastics overall.
    2) Are you suggesting that we should not have to pay for items that we as individuals chose voluntarily to use?
    I don’t believe that anyone else should have to help subsidize my choice to use a “free” plastic bag to clean up my Corgi’s mess.

  5. davisite2

    “The ordinance applies to all retail business in Davis and a 10 cent bag charge for paper bags “

    I believe that the COOP charges 5 cents for paper bags and does not use plastic bags. Are they required to raise the cost to 10 cents? If so, why?

  6. Davis Progressive

    i doubt that most davisites will choose to horde their bags, bag usage is way down anyway.

    “Are they required to raise the cost to 10 cents? If so, why? “

    yes – because that’s what the ordinance says. the number is derived from actual cost of the bags.

  7. Growth Izzue

    Steiner:
    [quote]I would estimate that it would cost somewhere between $20 and $40 thousand to get through the trial court, but that could be wildly off in either direction.”[/quote]

    So this could cost us $40 thousand plus and all so some Davis liberals can feel good about themselves.

  8. Growth Izzue

    Medwoman:
    [quote]2) Are you suggesting that we should not have to pay for items that we as individuals chose voluntarily to use?
    I don’t believe that anyone else should have to help subsidize my choice to use a “free” plastic bag to clean up my Corgi’s mess. [/quote]

    Funny, you had no problem advocating that everyone pay to put fluoride in our water when the one’s that wanted fluoride could just pay for it themselves through using drops or fluoride toothpaste.

  9. Davis Progressive

    “So this could cost us $40 thousand plus and all so some Davis liberals can feel good about themselves. “

    i see so an individual wants to file a frivolous suit and you’re blaming the liberals? why don’t you put the blame on the person who is responsible for doing it? isn’t that what you were arguing earlier this week?

    also you do understand that the city has a risk management insurance pool through ycparmia to avoid these risks.

  10. Frankly

    Does the ordinance prevent people from bringing in their own single-use plastic bags to the grocery store or restaurant? I don’t think so.

    Does the ordinance prevent any grocery store from selling plastic bags on the shelf? What about having them strategically placed at the aisle entrance for shoppers to purchase as they begin their checkout?

    I see some opportunity to get around this nutty piece of work.

    Also, I think we should have left restaurants out of it.

    1. They have fewer options to provide customers options.

    2. Takeout food containers are prone to some leakage and paper bags would be prone to failing if wet.

    3. The number of plastic bags used by restaurants would be de minimis compared to the numbers used for grocery stores.

    We should have amended the ordinance to excluded restaurants.

    I will add… if and when I purchase takeout and the bag fails and the contents are ruined as a result, I will naturally hold the restaurant responsible and will be less likely to do business with that establishment again. Knowing that, I am guessing that some restaurants will replace their environmentally-correct containers with those that are more trustworthy and less environmentally-correct.

  11. Growth Izzue

    [quote]also you do understand that the city has a risk management insurance pool through ycparmia to avoid these risks. [/quote]

    If that’s true then why didn’t the city’s lawyer point that out? Why wouldn’t she say that our cost would be covered by insurance?

  12. David M. Greenwald

    Most likely the answer is that she was not asked, however, I have a question into the city on that question. Nevertheless, I think even you would have to agree – whether you agree with the policy or not – that the city cannot allow their policies to be held hostage to anyone with a threat to sue, particularly one who has not won a single case in the state.

  13. Growth Izzue

    Are we going to possibly throw good money away over an ordinance that in my view doesn’t do much in the whole scheme of things except make liberals feel good?

  14. Frankly

    The council votes to make the liberals feel good, because as we can see with their behavior at the national level that they start throwing major tantrums when they don’t get their way.

    I think this plastic bag ban was/is idiotic, but I get the need for the council to appease the small group of extremely noisy, demanding and entitled social and environmental do-gooders.

    Sometimes, when the kid is fussy, you just buy him a toy, or feed him a sucker.

  15. David M. Greenwald

    The mayor stated, “This is a very very slippery slope to receive one letter after a fantastic ordinance has been drafted and brought to us. If we’re going to let people intimidate us out of a possible decision here, that sets an incredibly low bar to be able to slow us down on issues, especially in a case where the person bringing these suits is losing.”

    Respond to that GI

  16. Growth Izzue

    If it were an ordinance that really meant something that was worth defending, not this feel good one, then I would be all for defending it. Really, we might spend tens of thousands of dollars defending not using plastic bags and you really think that’s a good use of public money?

  17. Frankly

    [i]Not too smart of the council because feeding him a sucker might cost the city tens of thousands of dollars.[/i]

    Well, as Mr. Harrington has proved, a person with a discretionary income and motivation can file a lawsuit for anything. But I do think there is a point to the claim that restaurants should be excluded. That is why I would amend the ordinance to exempt restaurants. I assume that number of plastic bags that restaurants use is very small compared to grocery stores.

    Taco Bell and Subway… really? We are really going to force them to use paper bags?

    Guess so.

  18. B. Nice

    [quote]The council votes to make the liberals feel good, because as we can see with their behavior at the national level that they start throwing major tantrums when they don’t get their way. [/quote]

    Stephen Joseph seems to the one throwing the tantrum in this scenario.

    [quote]Sometimes, when the kid is fussy, you just buy him a toy, or feed him a sucker.[/quote]

    No suckers they are bad for their teeth.

  19. SouthofDavis

    Growth Izzue wrote:

    > So this could cost us $40 thousand plus and all so some
    > Davis liberals can feel good about themselves.

    This is not a liberal/conservative issue.

    Sure most of the “save the planet one bag at a time” cwowd is left of center, just like most of the “the bible says the earth is 3,000 years old” gang is right of center.

    Very few “liberals” care about banning bags (go to a NAACP meeting and see if even one person mentions the issue) just like very few “conservatives” want to change the histroy books to say God created the earth in 7 days (this won’t come up at most Tea Party meetings).

    P.S. Does anyone know the “fine” for not charging the $0.10 for a plastic bag? If I pay for dinner and on my way out of a restaurant my to go container is leaking and they give me a bag without asking for a dime will the city fine the place $20, $100, or $10,000?

  20. SouthofDavis

    Growth Izzue wrote:

    > SOD, how many conservative communities do you know
    > of that are banning plastic bags?
    > It’s a liberal feel good cause.

    Growth Izzue, how many liberal communities do you know of that have banned cars (like the conservative Amish every day and conservative Jews on the Sabath)?

    Banning bags is not a “liberal” feel good cause (just because mostly liberal eco people think it is important) any more than banning cars is a “conservative” feel good cause (just because mostly conservative religious people think banning cars is important)…

    P.S. I’m against the bag ban, but want to point out that a “social” liberal (who just wants a marrige to his male partner valid in all 50 states) is a lot different than an “eco” liberal (that wants to ban plastic bags and SUVs). I lived in SF when they banned bags and just about everyone I knew (and about 90% of the registered voters) would describe themself as “liberals” but about 90% of these (self proclaimed) “liberals” though the plastic bag ban was stupid…

  21. Davis Progressive

    interesting points by sod. i would suggest that there is a difference between social liberals and environmental liberals, though there is also some overlap. most people i know have gone away from plastic bags anyway. so it’s a non-issue, but it’s interesting how we all run in different social circles and thus have different experiences.

  22. hpierce

    DP wrote: [quote]also you do understand that the city has a risk management insurance pool through ycparmia to avoid these risks. [/quote]

    Do you understand the concept of “deductables”? Look at your auto or homeowners’ policy… David’s inquiry should have asked about this matter… I suspect that $10-15K (or more) is the City’s deductable, where YCPARMIA does not pay.

  23. B. Nice

    [quote]The council votes to make the liberals feel good[/quote]

    [quote]Davis liberals can feel good about themselves. [/quote]

    I’m not going to presume to know why everyone who supports regulations on plastics bags do, but I will say that from council’s discussions, and other opinion expressed by people in the community, it seem that these people support the regulation because they actually believe it will do some good and significantly impact the negative consequences caused by single use paper bags. It does not seem that they are motivated by the need to feel better about themselves. If you believe banning single use single bags is meaningless legislation then attack that idea, not the presumed motives of the people supporting the regulation.

  24. Mr.Toad

    I don’t really care about plastic bags. We can adapt easily. Still it does seem that this council is willing to use their powers to modify behavior with policies on plastic bags, trash can sizes and next up, fireplace fires. Maybe because I’m older and no longer yearn for change but it seems that this next generation is willing to use the coercion of the law, taxation and policy to try to modify behavior. Bags and trash is annoying but when they want to reach into the private homes of people with their wood burning i feel they are truly going too far.

  25. B. Nice

    ” Bags and trash is annoying but when they want to reach into the private homes of people with their wood burning i feel they are truly going too far.”

    Figure out away to confine the smoke to your house, so it doesn’t negatively impact all the people who live around you, and I’d agree with you.

  26. Mr.Toad

    “Figure out away to confine the smoke to your house, so it doesn’t negatively impact all the people who live around you, and I’d agree with you.”

    Of course, let’s run car exhaust pipes into driver seats, ban leaf blowers, backyard bar-b-ques, high school bonfires and every other source of air pollution. Not only is this invasive its arbitrary. The standards also make no sense because they fail to take into account weather conditions and include a 300 foot standard for deputizing vigilante fire place police, turning neighbor against neighbor. This 300 feet is a distance greater than any other community uses including those with worse air conditions. They are also inconsistent because if you upgrade your wood stove for thousands of dollars you could blow as much smoke as you want because you are exempt. Of course you could claim to have an approved stove but there is no way of proving it unless you allow entry into your home to the police, further violating the sanctity of your curtilage. Sadly, in pursuit of the common good your city council is about to trample upon the rights of individuals for actions that take place in their homes something the Bill of Rights sought to protect in the 3rd, 4th, and 5th amendments.

    To be clear, I’m not against trying to improve air quality, I’m against casting such a broad net to try to address a few problems that could be better addressed with a nuisance ordinance or mediation rather than criminalizing the actions of people in the sanctity of their own homes. I’m against adopting a standard that exceeds what all other communities are doing to address this problem and I’m not sure that the health problems are as great as the proponents are saying using statistical analysis instead of actual case data to support their crusade.

  27. J.R.

    If you look at the reasons that people gave for supporting the plastic bag ban over the last few weeks, you would see that Growth Izzue is right. The main motivation was to make people “feel good about themselves”. Just check back on the discussions. Remember the justification that we would feel good about Davis being a “progressive” town, like Berkeley, SF and others when we passed a plastic bag ban? I do.

  28. SouthofDavis

    B. Nice wrote>

    > Figure out away to confine the smoke to your house,
    > so it doesn’t negatively impact all the people who
    > live around you, and I’d agree with you.

    Since we have figured a way to keep our plastic bags from flying around the land fill (we use them to pick up dog poop before we throw them away) do you agree that we should still be able to get free bags?

  29. B. Nice

    ” Remember the justification that we would feel good about Davis being a “progressive” town, like Berkeley, SF and others when we passed a plastic bag ban? I do.”

    Does feeling good about being progressive mean we just feel good about having that label, or is it about feeling good because we are incorporating progressive ideology. I would argue it’s the latter.

  30. B. Nice

    “To be clear, I’m not against trying to improve air quality, I’m against casting such a broad net to try to address a few problems that could be better addressed with a nuisance ordinance or mediation rather than criminalizing the actions of people in the sanctity of their own homes.”

    I agree it should be a nuisance ordinance, I got the impression that’s what the NRC was going for.

  31. Mr.Toad

    “I agree it should be a nuisance ordinance, I got the impression that’s what the NRC was going for.”

    No, that is what city staff wants. The NRC proposal is much more punitive.

  32. B. Nice

    “Since we have figured a way to keep our plastic bags from flying around the land fill (we use them to pick up dog poop before we throw them away) do you agree that we should still be able to get free bags?”

    If everyone in Davis used the their plastic bags to pick up poop then they wouldn’t be flying around the landfill, or the rest of the city which the quite often are, so I’m guessing some people haven’t gotten the memo. I picked up a couple today flying around when I was bringing my dog for a walk, at least these will get reused:-).

  33. medwoman

    JR

    [quote]If you look at the reasons that people gave for supporting the plastic bag ban over the last few weeks, you would see that Growth Izzue is right. The main motivation was to make people “feel good about themselves”. Just check back on the discussions. Remember the justification that we would feel good about Davis being a “progressive” town, like Berkeley, SF and others when we passed a plastic bag ban? I do.[/quote]

    This completely misses the point that people take action for all kinds of different reasons. While one person may indeed be focused on “making themselves feel better” others may be focused on helping the entire community feel better and be healthier including those who are adversely affected by the effluent from the chimenys of others houses.

  34. medwoman

    Mr.Toad / B. Nice

    [quote]” Bags and trash is annoying but when they want to reach into the private homes of people with their wood burning i feel they are truly going too far.”

    Figure out away to confine the smoke to your house, so it doesn’t negatively impact all the people who live around you, and I’d agree with you.[/quote]

    I could not help but be reminded of another practice that used to occur in “the sanctity of one’s own home” but have the product shared with the remainder of the community in an unhealthful way. I am referring to the practice of dumping “night soil” buckets out of the window into the street below because of course, one would not want to keep the malodorous substance in one’s own home.

    So it would seem to me that what we have is a matter of degree. Probably because I have seen first hand while working ERs that the damage caused by minor triggers such as smoke inhalation in amounts that would not even be noticed by most of us ( or commented on as a pleasant smell by Frankly’s wife) be life threatening to the severe asthmatic or elderly person with COPD, I favor some kind of control over wood burning. Now it would be ideal if this control were “self control” with consideration for the well being of others however, I have lived long enough to know that not every one gives a damn about their neighbor .

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