Milpitas bag ban mistake – No legal ground to impose 10-cent bag fee!

How ironic that the sculpture in front of City Hall is of the Milpitas Minuteman, supposedly representing freedom of the people from a tyrannical government. Photo By David Alan Clark (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)%5D, via Wikimedia Commons

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.