Lawmaker aiming to bag Bisbee ordinance
Petersen: Ban on plastic sacks violates state law
Bisbee may soon have to choose between regulating plastic grocery bags and paying its bills.
Sen. Warren Petersen, R-Gilbert, has filed a complaint with the Attorney General’s Office alleging the southern Arizona city’s plastic-bag ordinance violates state law.
If the attorney general agrees, Bisbee must either change its ordinance or face losing state-shared revenue, typically a significant portion of city budgets.
Bisbee in 2012 passed an ordinance putting a 5-cent fee on all plastic grocery bags.
Last year, the Legislature and Gov. Doug Ducey passed a law prohibiting cities from banning or regulating plas-
tic bags, Styrofoam or other containers. Petersen was the primary sponsor for that bill.
Petersen did not immediately return calls seeking comment. His request to Attorney General Mark Brnovich did not include any details as to his motivation for challenging the ordinance.
During a 2015 legislative debate on the issue, Petersen said his push for state protection of plastic bags was related to concerns that such regulations raise costs for businesses and create regulatory problems.
“I’m extremely concerned about economic freedom in this state,” Petersen said then. “For me, I support individual rights and people making their own decisions.”
Bisbee Mayor David Smith, calling it a “David and Goliath situation,” said the city would fight to preserve its ordinance. He said he plans to collect private donations to cover the legal costs.
“They complain about the federal government interfering with the state and then turn around and do this to us,” he said of the Legislature. “It’s incredibly arrogant and hypocritical.”
Bisbee is the fifth city to face a complaint from a state lawmaker under Senate Bill 1487, a law that allows any lawmaker to direct the attorney general to investigate whether a city is trying to regulate an issue under state control.
The Attorney General’s Office has 30 days to investigate. If Bisbee is found in violation, it has 30 days to resolve the issue.
If the issue is not resolved, the Attorney General’s Office will then notify the Treasurer’s Office to withhold state-shared revenue.
The complaint wasn’t a surprise to Bisbee.
Sen. Gail Griffin, R-Hereford, sent a letter last year to the Attorney General’s Office stating that she has heard concerns from constituents about the Bisbee ordinance.
The Attorney General’s Office issued an opinion that Bisbee could be subject to SB 1487 even though the bag ordinance was passed years before the state law on plastic bags, but it said Griffin would have to file a formal complaint if she wanted the matter pursued.
She never followed up with an official request for investigation.
Smith said the majority of Bisbee residents have supported the ordinance, and that many businesses have embraced it.
“Sure, there was originally concern from businesses,” he said. “But since then, some of the businesses have capitalized on it, putting up signs that say this is an environmentally friendly place.”
Since Bisbee is a charter city, Smith said, he believes the City Council has the authority under the state Constitution to set rules for its residents.
“It’s really quite frustrating that we, as a charter city particularly, are exercising our right that the majority of people want, and the state comes in to tell us we can’t do this,” he said. “Certainly this isn’t the same question as the gun situation in Tucson.”
Last year, Rep. Mark Finchem, R-Oro Valley, asked the attorney general to investigate whether Tucson’s ordinance allowing police to destroy confiscated weapons conflicted with state law requiring such weapons to be sold.
The issue went to court, and the Arizona Supreme Court in August ruled that the state had authority over charter cities on public-safety issues, such as the gun ordinance, but not on some other issues.
The court ruling did not address who may have authority on an issue such as plastic bags.