The smaller stores in Darien may get a break on the proposed mandatory 10 cent charge on recycled paper bags if the plastic bag ordinance passes.
At Monday night’s RTM Public Health & Safety Committee, Monica McNally, who is chairman of the RTM Public Works Committee, announced an idea of a change to the town’s proposed Ordinance for the Management of Plastic and Paper Checkout Bags — in regard to the 10 cent fee.
The ordinance, which was proposed by BYO (Bring Your Own) Darien, phases out plastic bags of less than 12 mil thickness and requires a 10 cent charge for recycled paper bags, with the charge being retained by the retailer.
The change that McNally recommended is that the fee would be based upon the size of the store, as opposed to being mandatory for all businesses in town.
According to her suggestion, smaller stores, which McNally characterized as under 10,000 square feet, would permanently not be required to charge a 10 cent fee with the purchase of a paper bag. However, if they want to, they could.
McNally added that the larger stores in town, including Stop & Shop, Palmer’s, Walgreens, CVS, Whole Foods and Trader Joes, would still be required to charge the 10 cent fee.
Details of new ban suggestion
Through Jan. 1, 2020, the larger stores in town would have to use up their current supplies of bags, of both plastic and paper.
Beginning Jan. 1, 2020, the larger stores would be required to offer a recyclable paper bag for 10 cents, or a reusable plastic bag, which needs to be 12 mil in thickness.
Smaller stores would get one extra year — until Jan. 1 of 2021 — to use up their supply of paper and plastic bags. After that point, they must offer recycled paper bags, but have the option of charging the fee.
“This new ordinance carves out the space for the smaller stores not to have to charge you the 10 cents, from the beginning,” McNally said.
She added that she and other RTM members recently approached the smaller stores in town. “There are many more small stores in Darien than there are the larger stores,” she said, adding that the smaller stores are what her committee considers to be the audience for their suggested change to the proposed ordinance.
“My biggest takeaway is that small stores don’t want to charge the 10 cents,” she said.
The overall goal, she added, is still to “bring your own bag” when shopping.
Once the larger stores impose the bag fee, they would need to have a sign or tell the consumer directly, and they’ll need to mark it on the receipt, according to McNally.
“This is a very good compromise,” she added, referring to the suggested change.
Town counsel letter
Despite McNally’s recommendation, Wayne Fox, the town counsel for Darien, has made it clear for over a month that he still would not support passing such an ordinance, since he doesn’t recommend any store — no matter the size — charge a fee.
In a letter that Fox sent to First Selectman Jayme Stevenson on Feb. 14, which The Darien Times first had access to on March 19, Fox wrote that if an ordinance to ban plastic bags is adopted, “it would be advisable if the proposed cost or the limitation on such a cost be removed.”
Fox wrote that while he doesn’t take a position on the underlying public policy, “I do address the legal order of the ordinance and the potential for it being challenged at some future date. Obviously, for the benefit of the town, I want to avoid any legal challenge, which carries with it not only the potential for expensive litigation but can call into question the validity of actions taken by the town.”
As a general principal, a municipality can’t impose a tax unless specifically authorized by the state statutes, according to Fox.
He brought up Connecticut General Statutes 7-148, “which allows for the imposition of a tax on property, subjects or objects which may be lawfully taxed,” he wrote, adding, “There is no statute which authorizes a tax on plastic bags. There must be statutory authority for any such tax to be imposed.”
In his letter, he also brought up Chapter 203 of the General Statutes, which “demonstrates that the Legislature specifically grants municipalities the authority to tax various types of real and personal property,” he wrote. “The exclusion of plastic bags and the inclusion of such a long list of other items is important because a municipality only has the powers of taxation expressly granted to it by the Legislature.”
In addition, Fox addressed the claim — which some of the people The Darien Times has interviewed on this issue has said — that the charge can’t be a tax since the money received will kept by the store owner and not the government. “While this is a creative argument, it is still a serious question as to whether or not it is allowed by state law,” Fox wrote.
He further wrote that a claim may be made that a fee that establishes or limits a charge being imposed for a recycled paper bag “may constitute an improper governmental intrusion into the market place and its enforcement could be questionable.”
BYO Darien: All stores should charge fee
In response to McNally’s suggestion to change the proposed ordinance, Juliet Cain, co-founder of BYO Darien, wrote that BYO Darien sees no reason to exempt certain stores from charging the fee.
In an email to the Darien Times on March 20, Cain wrote that the charge not only serves to remind people to bring their own bags but also helps businesses — “especially smaller businesses — defray the cost of transitioning to recycled paper bags.”
“We do not understand what benefit a store derives from being required to offer recycled paper bags but not having to charge for them,” Cain wrote. “If I own a small store that sells the same items that my competitor sells and my competitor chooses not to charge for its recycled paper bags, I’m going to look bad if I charge, even though I could really use the 10 cents to cover the cost of these more expensive bags. The beauty of a required charge is that all retailers are treated equally and no one has to make a difficult decision or absorb a cost they can’t afford so as not to look cheap next to a competitor.”
She also reiterated the environmental purpose she previously said the charge has – “to avoid simply replacing plastic with paper which, from a carbon footprint perspective, is as harmful as plastic.”
Cain further pointed out that at the last public hearing, the majority of residents were in favor of the ordinance as proposed, “and therefore willing to pay 10 cents, so why would we want to make it both more difficult for retailers to charge and at the same time undermine the purpose of the charge?”
Lastly, she said that, “if, as has been shown in studies, the charge works successfully to remind people to bring their own bags, the issue of the charge will soon be moot.”
A Special Meeting of the Public Works Committee will be Thursday, March 21, at town hall, Room 119, at 7:30 p.m. to discuss and vote on the plastic bag draft ordinance.
On March 27 at 8 p.m., the Public Works, Public Health and Safety, and Town Government Structure and Administration Committees of the RTM will hold a Public Hearing in the Town Hall Auditorium. The purpose of the meeting is to give the general public an opportunity to be heard concerning the proposed Ordinance for the Management of Plastic and Paper Checkout Bags in Darien.