Bisbee to AG: keep state’s nose out of bag ban

The Bisbee city attorney told Attorney General Mark Brnovich Tuesday that his community’s regulations on plastic bags are none of the state’s business.

In a sometimes sharp worded letter, Britt Hanson detailed the city’s problem with blowing bags and the eyesore and expense they caused prior to adoption of a 2013 ordinance. That law prohibits retailers from providing free single-use plastic bags to customers; paper bags from recycled material can be provided with retailers required to charge a nickel.

The result, he said, has been a cleaner community and lower costs for retailers.

Hanson said there was no reason for the Legislature to approve a 2016 law preempting local governments from regulating these bags. In fact, he took a slap at those lawmakers who voted for the law to overturn the Bisbee ordinance without ever having actually been to the community.

“Although the law prohibiting Bisbee from banning plastic bags declares that it is a matter of statewide concern, it doesn’t say what that concern is,” he told Brnovich.  And without any legal basis, Hanson said that law cannot be used to force Bisbee to scrap its ordinance.

The letter sends the issue back to Brnovich who had gotten a complaint last month from Sen. Warren Petersen, R-Gilbert, accusing the city of violating the preemption law he had pushed through the Legislature.

A separate 2016 law requires Brnovich to investigate any legislator’s complaint that any city ordinance runs afoul of state laws. If he determines a city is acting illegally, he must move to withhold that community’s state aid.

There was no immediate comment from the Attorney General’s Office to Hanson’s letter.

Brnovich recently got the Arizona Supreme Court to rule that state laws prohibiting city ordinances dealing with weapons overruled Tucson’s right to order the destruction of guns which had been seized by or surrendered to police.

But Hanson, in his letter to Brnovich, said the Bisbee ordinance is different. He said the only basis cited for Petersen’s preemption was language added to the bill claiming that small businesses are sensitive to costs of local regulation and that allowing cities to each have their own laws “hinders a small business from benefiting from free and open competition.”

Hanson sniffed at that excuse.

“You would be hard pressed in the legislative proceedings of either the House or Senate to find any testimony or alleged facts on which to base such findings,” he told Brnovich. And he said no lawmaker ever even asked about the Bisbee ordinance already in existence that they were moving to quash.

“If they had, they would have found that Bisbee’s retailers have embraced it,” Hanson said. He attached a letter from Pam Rodriguez, the owner of Acacia on Main Street, who said she is saving between $500 and $600 a year on bags.

And he said that Safeway, the city’s largest retailer, provided the language for the model ordinance on which Bisbee’s regulation is based.

“Just because the Legislature decrees something is ‘statewide concern’ … does not mean it overrides the local concern,” Hanson said.

That goes to Hanson’s main argument that there is no basis for lawmakers saying they know what’s best for Bisbee and other local communities.

“If the businesses in Bisbee that the Legislature is supposedly protecting with HB 2131 have no issue with the bag ban, does the state really have an interest in prohibiting Bisbee from doing so?” he asked. “And really, who should decide how best to combat Bisbee’s blight and litter: the citizens of Bisbee and their representatives, or state legislators most of whom probably have never even visited Bisbee and have no clue as to its local concerns?”

That, however, still leaves the legal question of how far cities can go in enacting their own rules when state lawmakers say otherwise.

Hanson pointed out that Bisbee is one of 19 cities that has taken advantage of a state constitutional provision allowing it to have its own charter. Those cities have generally been empowered to write their own ordinances on matter of strictly local concern, regardless of conflicting state statutes.

For example, the Arizona Supreme Court has upheld the ability of charter cities to decide how to elect members of their councils and on what days to have those elections despite legislation to the contrary.

But in its August ruling on the Tucson gun ordinance, the justices unanimously concluded that charter provisions and the law enacted by charter cities must be consistent with both the Arizona Constitution and general state laws.

Hanson conceded the breadth of that ruling. But he told Brnovich — and essentially prepped for what could be his argument to the Supreme Court if Brnovich sues — that it makes no legal or logical sense to have a blanket rule that lawmakers can do whatever they want to cities.

“If Bisbee’s exercise of its charter powers to eliminate local litter and blight can’t survive, it’s hard to imagine what possible could,” he wrote.

“The notion of charter cities would become a joke,” Hanson continued. “The Legislature could crush any independence of charter cities, and thus override the (Arizona) Constitution, simply by declaring anything to be a matter of statewide interest, as they have attempted to do here.”