Park & Shop Markets, Inc. v. City of Berkeley

Appellants, retail grocers doing business in the City of Berkeley, brought this action to have Berkeley City Ordinance No. 4830-N.S. declared invalid. The court struck section 2c(3) from the ordinance while upholding the remainder. Appellants appeal from the judgment, except insofar as section 2c(3) was held invalid.

The City Council of Berkeley found that in Berkeley there is a serious problem in the disposal of solid waste. Further, the council found that the sale of malt beverages and soft drinks in nonrefillable or disposable containers exacerbates the quantity of litter and solid waste.

To ameliorate these difficulties, the ordinance (§ 2a) requires that there shall be a deposit of not less than five cents on every container (refillable and nonrefillable) containing a malt beverage or a soft drink sold at retail in the City of Berkeley. One exception is provided to the five-cent deposit: in the case of a refillable container, the retailer may require not less than two cents as a deposit if the retailer’s distributor refunds two cents or more to the retailer upon return of the refillable container. The deposit, of course, is to be refunded to the consumer at such…