Arizona AG: Bisbee law on disposable bags violates state law
Oct. 24, 2017
PHOENIX (AP) — Arizona Attorney Mark Brnovich on Tuesday declared that a Bisbee city ordinance that bars retailers from providing shoppers with disposable plastic bags conflicts with a state law, a finding that puts much of the small southern Arizona city's budget at risk.
In the latest review of a local law in response to a legislative complaint, Brnovich released a four-page report concluding that Bisbee's ordinance violated state law by imposing regulatory mandates on private citizens and businesses regarding disposable bags.
"The city has offered policy arguments for why it believes local regulation of disposable carryout bags is preferable. But the Legislature has spoken," Brnovich said.
Under the decision, Bisbee has 30 days to resolve the violation before Brnovich orders a cutoff of state funds to the city.
Bisbee's ordinance prohibits retail establishments from providing customers with single-use plastic carryout bags and says recycled paper bags can be provided only for a fee of at least 5 cents each.
Bisbee City Attorney Britt Hanson said he expects to brief the City Council on the finding Monday. The council could decide to rescind or revise the ordinance or challenge the decision and ask for an order blocking the funds cutoff while the case proceeds.
"If the city does choose to fight it will be setting up a legal defense fund, because this is potentially expensive litigation," Hanson said. "I know a lot of people around the state feel pretty strongly about this issue - not just the plastic bag issue but the state versus local control issues."
In an Oct. 10 response to the complaint, Hanson said the ordinance was a response to visual blight caused by plastic carryout bags that are blown by wind and get caught on trees and brushes. "Multiply this by numerous such occasions and you have a blighted mess in short order," Hanson wrote.
Brnovich reviewed Bisbee's ordinance after receiving a complaint from Republican Sen. Warren Peterson of Mesa.
A 2016 state law allows individual legislators to request reviews of local laws for compliance with state law, and gives the attorney general 30 days to issue a decision. The 2016 law requires the withholding of state-shared revenue from cities that refuse to rescind ordinances deemed to violate state law.
Bisbee's state-shared review from the state income tax and other sources adds up to $1.8 million, or about a quarter of its $7.4 million budget, according to figures provided by the League of Arizona Cities and Towns.
Brnovich's review of Bisbee's bag ordinance was his office's fifth under the 2016 law, though not all ended with formal findings.
Brnovich previously concluded that a Phoenix Police Department operations order on immigration-related procedures didn't conflict with state law.
He said a Tucson ordinance on disposal of seized or surrendered guns might violate the law and referred the issue to the Arizona Supreme Court, which later ruled that the Tucson ordinance did violate state law.
In the other cases, Snowflake revised two facilities agreements after Brnovich said they might violate state law, and a lawmaker withdrew a complaint about a Somerton zoning ordinance.
The complaints were filed by five different Republican lawmakers.