Members of a city committee who spent more than a year studying a ban on some plastic retail bags said Tuesday they disagree with the city attorney’s view that charging customers 10 cents for a paper bag might be legally improper. They said a fee is needed to make the new law work.
The mandatory fee is a key element of the plastic bag ban, which takes effect Feb. 27. It is meant to serve as an incentive for shoppers to bring their own reusable bags and to reimburse businesses for the higher cost of paper bags.
“Not charging just guts this ordinance,” said Dena Aquilina, the general manager at Beneficial Farms and a committee member who helped draft the original ordinance. “Not charging is not the way to go.”
But since the ordinance, designed to reduce plastic litter, was passed in August 2013, Interim City Attorney Kelley Brennan has told councilors that the 10-cent charge amounts to an improper tax that Santa Fe is not authorized to impose.
The City Council will consider a change in the law next week to eliminate the 10-cent charge. That amendment was supported with reservations Tuesday by the City Business and Quality of Life Committee, comprising city councilors, business owners and residents. Members made it clear Tuesday they are not pleased with the proposed change, but will not derail the ordinance as long as the city revisits the fee as soon as possible.
Piper Kapin, owner of Backroad Pizza, said the 10-cent charge is a core element of the current ordinance. “Why is the charge approved in Santa Fe not proper,” she asked, “when in other places they are able to have it in place?”
One of the groups pushing for plastic bag bans is the Malibu, Calif.-based Surfrider Foundation, whose mission is to preserve oceans and beaches. Its website lists more than 100 plastic-bag bans around the United States and claims “the most effective ones include a small fee on paper bags to encourage more reusable bags.”
Surfrider cites some 90 ordinances in California alone, with the largest being in Los Angeles — but other bans exist in Colorado, Oregon, Texas, Iowa, New York, Massachusetts, Hawaii and Maryland. Aspen, Colo., imposes a 20-cent fee on paper bags, according to the organization’s website, and Brownsville, Texas, originally imposed a fee of $1 per bag when its ordinance took effect in January 2011, although the fee is now being scaled down. According to an article in The New York Times, the Brownsville law has eliminated 350,000 bags per day.
Zachary Shandler, assistant city attorney, acknowledged there have been just two court challenges to the bag fees — and the case in Los Angeles County has been resolved with the fee being upheld. The other challenge, which is in Colorado, is still pending.
Even though the charge was upheld in California, “the analysis was not helpful” to Santa Fe’s ordinance, and New Mexico law is quite a bit different as far as what a municipality is allowed to tax, Shandler told the committee.
City Councilor Peter Ives, an attorney, said his research supports that interpretation. The 10-cent fee could be challenged, as municipalities have limited taxing authority in New Mexico, Ives said. If the amount is called a fee, not a tax, then it has to be justified as relating to the cost of a paper bag or other purposes of the ordinance, such as environmental education. He suggested a 5-cent fee or a 7-cent fee might be more justified, as that is the actual cost of a paper bag.
Councilor Rebecca Wurzburger, chairwoman of the committee and an original co-sponsor, said the analysis of the 10-cent fee came to the fore only in December, when a merchant emailed a question to the city asking whether the charge was subject to gross-receipts tax. That set off the chain of events that is now leading to next week’s proposed amendment.
“Our advice is it was a tax,” Shandler said. “The council is free to accept or reject that legal opinion.”
Other amendments to be considered by the council next week include moving the ban forward with its current effective date of Feb. 27, but adding a 30-day grace period until the end of March. “The ban will be in place, but the city won’t be writing tickets during that period,” Shandler said.
The ordinance defines a single-use carryout bag as “any carryout bag made from plastic or any material except paper marketed or labeled as ‘biodegradable’ or ‘compostable’ that is neither intended nor suitable for continuous reuse as a carryout bag or that is less than 2.25 mils thick.” Stores still would be able to provide smaller bags for bulk items such as meat, produce and bakery goods.
Meanwhile, some Santa Fe businesses say they are prepared for the change.
At Party City on Cordova Road, “We are already providing our customers with paper bags. We started that about a week and a half ago,” said manager Sharee Mendez. Other Party City stores in California, for instance, have already made the change, and it’s not an inconvenience for customers, she added.
Albertsons, Santa Fe’s largest grocery chain, will offer paper bags and continue to sell reusable bags for $1, but will not offer plastic bags after Feb. 26.
But other changes would wait until the law is finalized, said Paul Bancroft-Turner, regional spokesman for Albertsons.
There is nothing in the proposed amendment to the Santa Fe bag ban that precludes retail stores from charging customers for paper bags, but Albertsons “does not foresee charging customers for paper,” Turner said.
He added that the grocery chain has made less-expensive reusable bags available in California, and they even fit in the current bag wells at the checkout, but plans for that in Santa Fe have been postponed for now. “One way or another, plastic will go away, but everything else is on hold until the vote,” he said.
Contact Bruce Krasnow at email@example.com.