Dallas Buckles, Retracts|Shopping Bag Fee

     DALLAS (CN) – Facing a lawsuit and threats of state intervention, Dallas on Wednesday repealed a partial ban on single-use bags and refused to impose a harsher complete ban.
     The Dallas City Council in March 2014 approved an “ environmental fee ” ordinance that required retailers to charge customers 5 cents for each single-use carryout bag, plastic or paper.
     The ordinance has raised about $500,000 for the city since it took effect this year.
     The council repealed the law by 10-4 vote Wednesday.
     The vote came a month after four plastic bag makers sued the city in Dallas County Court, calling the ban an illegal tax preempted by state law .
     The bag makers claimed they lost sales in Dallas and now have to make short manufacturing runs that add “considerable expense” to the process.
     State Rep. Matt Rinaldi, R-Irving, targeted bag bans in February with House Bill 1939, which sought to allow businesses to provide customers with bags or containers “made from any material” at point of sale.
     Rinaldi cited warnings by Gov. Greg Abbott that such bans are “ Californianizing ” the state by “eroding consumer choice and the rights of business-owners.”
     Also Wednesday, the council rejected an ordinance banning single-use bags, by 9-6 vote.
     Mayor Mike Rawlings cited the lawsuit and possible state intervention in voting no, but said his vote was not in support of the lawsuit and that he wants the city clean.
     Councilman Dwayne Caraway, the ban’s most vocal supporter, criticized the council for shifting the costs of cleaning up litter onto taxpayers.
     “I was elected by the people, not the bag manufacturers,” Caraway said. “So we go back to being dirty Dallas. … We cannot just have a dirty, trashy city.”
     Caraway also criticized city businesses for giving out the “cheap” single-use bags instead of reusable, costlier bags.
     Councilwoman Jennifer Gates opposed both measures, saying bag disposal is an issue of personal responsibility for consumers and retailers.
     Councilmen Rick Callahan and Sheffie Kadane noted that all litter is a problem and the laws against littering were on the books already.
     “If the laws were working, we would not have this problem,” Caraway responded. “We need to protect the citizens.”
     Rawlings said the city “is not doing a very good job enforcing the laws we have.”
     In spite of voting for a complete ban, Councilman Adam Medrano voted to repeal the partial ban.
     “We are in a lawsuit and I do not think it’s something we can win,” he said.
     After the meeting, Gates tweeted that there were “no winners today,” only the council’s desire to make the right decisions for the city.
     “Now residents, do your part and be responsible consumers,” she tweeted. “If behavior has changed regarding plastic bag use for the good, repealing the ordinance doesn’t have to change that.”
     In spite of the good intentions of the city, the “environmental fee” was an impermissible tax, the bag makers argue in their lawsuit.
     “It raises more revenue than is reasonably necessary to subsidize the city’s efforts to insure compliance with the ordinance,” the complaint states. “The tax imposed by the ordinance is not authorized by the Texas Constitution or Texas statutes. It is not a property tax, a hotel occupancy tax, or one of the miscellaneous other taxes a city may impose. Nor is it a permissible sales tax. A city may impose a sales and use tax only if approved by a majority of voters in an election.”
     The plaintiffs also cited a 2014 opinion by then-Attorney General Abbott that concluded such bag bans violate state law.
     State Rep. Dan Flynn, R-Van, had asked Abbott for his opinion, citing concern with perceived abuse of power by municipalities.
     “It’s not about Austin, it’s all about state authority and the power grab by some cities over state law, that’s just about the easiest way to say it,” Flynn said at the time.

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