Few straw ban bills have proven as controversial as the one being considered in Santa Barbara, California.
On July 17, a bill was introduced into the Santa Barbara City Council that would prohibit restaurants from giving their patrons single-use plastic straws. The proposed ordinance made every illicit straw handed out—save for the first straw—a violation of the municipal code, and empowered the city to levy fines or even bring criminal charges.
That July 17 meeting saw the bill discussed, and orally amended to include an exemption for disabled people, after which the city council voted 6-to-1 to place the straw ban bill on the "consent calendar" for the next meeting, meaning that it would be voted on the following week.
Voting to put something on the consent calendar typically suggests support for the underlying bill, so local media—including the Santa Barbara Independent, ABC affiliate KEYT, and local news website Noozhawk—reported the straw ban as passed.
When I wrote about the bill on July 19, I said it had passed as well. Operating off the text of the bill that the council had voted on—which did not include the orally-added disability exemption—I also said the bill did not include a carve out for disabled people.
Saying that the bill had passed was incorrect, as it required another, final vote before it officially became law. This falsehood might have been missed had it not been for two things.
Firstly, other outlets started picking up on my reporting, and saying, as I did, that the bill had been passed. This in turn sparked a wave of counter-reaction to Santa Barbara's still proposed straw ban, including segments on Fox News, countless straw ban memes, and a flood of outraged calls to the city government about the bill. People even started to mail straws to city hall in protest.
Secondly, on July 24, the Santa Barbara city council voted not to approve its straw ban as written, but rather to send it back to the council's Ordinance Committee so that plastic stirrers could be included in the ban.
"I can understand how folks would be asking for plastic cutlery in certain circumstances, but I cannot … understand why we need plastic stirrers," said Councilman Gregg Hart at that meeting.
The city also used the occasion of sending its straw ban back to committee to do some damage control. On July 26, the city issued a press release stating that a vote on the proposed ban was being delayed (while omitting any mention of the reason for the delay). This press release also stated that "jail time and fines are not proposed for anyone who uses a plastic straw or provides one to a customer."
The claim that jail time and fines are not part of Santa Barbara's straw ban as currently written is not true. As I explained in my initial post, by prohibiting the provision of plastic straws by food service businesses, the city council was giving the city government the power to pursue criminal charges against straw providers should it want to.
Bryan Latchford, Santa Barbara's outreach coordinator for environmental services, stressed to me that regardless of the potential penalties allowed by the bill, the city council had no intention of criminalizing scofflaw straw providers.
"The intention was never to issue fines or jail time," says Latchford, telling Reason that the drafting of the straw ban as an ordinary code violation—any violation of which is a misdemeanor by default—was a decision made by the Santa Barbara city attorney (who's tasked with writing up all ordinances in formal legal language) for reasons of expediency. In short, it was so outside Santa Barbara's intentions to fine or jail someone for straws, it was a waste of time to make that explicit in the text of the ordinance they were considering.
Latchford also cited the city's plastic bag ban and its prohibition on jaywalking as examples of things that are technically misdemeanors under the city's code, but which would never be charged as such. Santa Barbara's mayor, as well as a number of commenters, have made a similiar point to argue that the focus on the maximum penalties allowed for straw possession are misplaced, if not inaccurate.
The trouble with this line of reasoning is that laws, once passed, become separated from the intentions of those who voted for them.
Latchford's example of jaywalking speaks to this. I seriously doubt, for instance, that when nearby Los Angeles passed its jaywalking ordinance in 1925, the intention was to fine, arrest, and otherwise harass the city's homeless residents. Nevertheless, that is exactly what has played out, as Reason's Brian Doherty noted in his 2014 article "Petty Law Enforcement vs. the Poor."
More extreme one-off examples of jaywalking enforcement can be found as well. In 2017 Nandi Cain received a vicious beating from a Sacramento police officer after he was stopped for jaywalking. Something similar happened in Stockton, California in 2015, when nine officers hit, tackled, and then arrested a 16-year-old for jaywalking and resisting arrest. We shouldn't forget the fates of Eric Garner or Michael Brown, both killed by police after being stopped for selling loose cigarettes and jaywalking respectively.
Whether or not the Santa Barbara officials pushing a straw ban in 2018 want to see fines and jail time for violators does not change the fact that these penalties are still on the books, and could be used to harass, jail, and impoverrish residents and businesses should political will change.
Indeed, statements from Santa Barbara officials suggest that, while the city doesn't intend to seek the maximum penalties for its straw ban, it likes having them around for use in extreme, vaguely defined circumstances.
When I asked Santa Barbara Assistant City Attorney Scott Vincent about the potential penalties in the city's straw bill, he stressed that they would only be used in extreme circumstances. Latchford himself said told KEYT that "jail time or stiff fines are not the intent for first-time offenders," but that those penalties are included in the city's code as a last line of defense.
If the intention of Santa Barbara straw ban proponents is truly to never use the maximum penalties allowed by current text of its straw ban, then those maximum penalties should be removed. Otherwise, what is the argument for keeping them? If the intention is to only use these maximum penalties for the most egregious straw violators, city officials owe it to their constituents to explain what these circumstances might be.
The straw ban ordinance will not be picked up by the full council again until September, and Latchford tells me that there is a possibility the penalties in the bill will be amended or removed.
Doing so would demonstrate that Santa Barbara city officials' handwringing about how they would never try to fine or jail someone for handing out plastic straws to customers is more than just damage control.