The LA County bag ordinance lawsuit was scheduled for a hearing yesterday in the LA County Superior Court, but has been continued on to next week.
LA County passed a bag ordinance in November 2010 that banned single-use plastic bags and placed a 10 cent price requirement on paper bags in large grocery and convenience stores throughout the unincorporated County areas. Earlier that same year, California voters had passed Proposition 26 which expanded the definition of a tax requiring a 2/3rds vote.
It took almost a year after the ordinance's adoption, with implementation already well under way in stores, before a lawsuit was filed by Hilex Poly, an east-coast based plastic bag manufacturer, and four LA county residents (two of whom are Hilex Poly employees). They claim that the County’s ten cent minimum price requirement on paper bags is a tax and the County has violated Prop 26. And while the peition is focused on the paper bag charge, it's asking for the entire ordinance to be invalidated.
A couple points we'd like to note:
- The money stays with the stores and doesn't get collected by the County. And contrary to an unavoidable tax, the 10 cent charge can be easily circumvented by refusing to purchase the store's paper bags. The paper bag charge is NOT a tax.
- The ordinance contains a severability clause, which means that valid portions of ordinance (i.e. the plastic bag ban) must be upheld if they are severable from the invalid portions (the portion in question in this case being the paper bag charge) and are a completely operative expression of legislative intent.
The County’s opposition brief argues those points and more. It summarizes the petition as
"a last ditch effort by the plastic industry to invalidate a Los Angeles County ordinance...premised upon the County's "deputizing" of retail stores as the County's tax collector...their motivation in the lawsuit is the hope that this Court will take the extraordinary step of invalidating the entire ordinance including its provision banning plastic bags. If that happens, Petitioners return to selling plastic bags in the County's unincorporated areas, while the County, its taxpayers, and the environment, shoulder the burden resulting from the negative impacts of plastic bag litter."
Read the entire brief, the original complaint, and other relevant court documents below.
Complaint for Writ of Mandate (filed October 3, 2011)
Petitioners’ Memorandum of Points and Authority
Petitioners’ Request for Judicial Notice
Petitioners’ Reply Brief
LA County’s Opposition Brief
The hearing is set for March 23, 2012. Stay tuned for the decision from Judge James Chalfant.