ATHENS, Ohio — The state of Ohio is suing the city of Athens to stop the city’s plastic bag ban that went into effect Monday, Jan. 1.
The Ohio Attorney General’s office filed the complaint in the Athens County Court of Common Pleas on Dec. 27, 2023. The state argues that the city’s ban conflicts with a provision in the 2022-23 biennium budget, passed in 2021, intended to prevent municipal bans on plastic bags.
The suit names the city, Law Director Lisa Eliason and Service-Safety Director Andy Stone as defendants (in their official capacities). Judge Patrick Lang is overseeing the case.
The next move is for the city to answer the complaint, Eliason told the Independent Tuesday.
In the meantime, “The ordinance is in effect,” Eliason said. “I’m not sure what will happen next, it could be decided on briefs or court hearings.”
Eliason said she was not aware of any violations of the ordinance thus far and that she is unaware of the state taking similar action against the city previously.
“The city will answer the complaint and wait and see what happens next,” Eliason said.
Athens City Council member Alan Swank, a Democrat who introduced the ordinance banning single-use plastic bags, said the attorney general’s decision to sue the city “didn’t surprise me at all.”
“This is the direction the country’s going, but for whatever reason, leadership in Columbus thinks they know better,” Swank said. He described the lawsuit as “trying to undo the will of the people” and compared it to legislators’ efforts to overturn or adjust laws on abortion and marijuana passed by voters in the 2023 general election.
Stone declined to comment Tuesday.
Home rule?
The state argues that the city’s plastic bag ban exceeds the home rule authority granted to Ohio municipalities by the state constitution to pass their own laws. The ban — according to the state — directly conflicts with Ohio Revised Code Section 3736.021, which states, “A person may use an auxiliary container for purposes of commerce or otherwise.”
Under Ohio law, businesses are persons and auxiliary containers includes bags — so, by the state’s reasoning, preventing businesses from using bags in commerce violates ORC 3736.021.
“A permanent injunction is necessary to enjoin the City from unconstitutionally restricting Athens stores and vendors from using single-use plastic bags that they are otherwise permitted to use under Ohio law,” the complaint states.
Moreover, the state argues that “to ban the transfer and sale of single-use plastic bags by stores and vendors and to criminalize such conduct violates the Ohio Constitution, infringes on the rights of its citizens, and causes irreparable harm.”
Article XVIII, Section 3 of the Ohio Constitution — generally known as the Home Rule Amendment — grants municipalities “all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” The city’s plastic bag ordinance cites the Home Rule Amendment. Instead of ORC 3736.021, however, the ordinance refers to ORC 715.013, which bars municipalities from imposing taxes or fees on auxiliary containers.
Athens City Council adopted the ordinance on May 1, 2023, joining Cuyahoga County and the city of Bexley in banning single-use plastic bags in Ohio.
The city’s ordinance imposes an automatic $150 fine on any store or vendor that provides plastic bags to its customers. If the fine isn’t paid within 30 days, the city may charge the business with a minor misdemeanor.
The Cuyahoga County Department of Sustainability website states that the county opted to not issue fines because of the state’s efforts to outlaw plastic bag bans. Some municipalities within Cuyahoga County have opted out of the county’s ban on the basis of home rule.
Bexley’s policy imposes a maximum fee of $100 for noncompliance and the equivalent of a minor misdemeanor.
Vendors comply with ban — effective, for now
The OAG’s complaint cites an April 2023 article by WOUB containing comments from local business owners concerned with the ban. These included comments by Gene Armes, general manager of the College Bookstore, at 50 S. Court St., who told WOUB that the change would cost the bookstore $8,500 per year and that the store would need four times more space to store paper bags, which are bulkier than plastic.
“I tried my best,” Armes told the Independent on Wednesday. “I communicated with all the city council members independently and constantly, directly through emails so that this wouldn’t be something that was put into a public spectacle — and we said what we [needed] to say.”
The store has already purchased a large supply of paper bags to comply with the ban, which took effect on Monday.
“I’ve still got 35,000 paper bags I’ve got to use regardless of what the city does or doesn’t mandate, so it doesn’t make any difference to me,” Armes said.
Other local businesses also have adjusted practices. Lisa Lyons, general manager at Seaman’s Cardinal Super Market on West Union Street, said the store is using up the last of its remaining plastic bags and will soon offer paper bags exclusively.
Seaman’s has historically offered both paper and plastic, Lyons said Wednesday. The change, Lyons added, will not affect the store’s bottom line. However, “I know a lot of our customers will be happy if we are able to continue to offer our plastic bags.”
Athens ReThinks Plastics, who was instrumental in the ordinance’s creation, did not respond to a request for comment in time for publication.
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