Bisbee’s Plastic Bag Ban Violates State Law

Attorney General Mark Brnovich has concluded that the City of Bisbee’s plastic and carryout bag regulations violate state law. Brnovich determined that Bisbee’s regulations conflict with state law which prohibits municipalities from regulating the sale or use of disposable carryout bags by private businesses.

“My job as Attorney General is to enforce state law,” said Attorney General Mark Brnovich. “Regardless of environmental policy arguments for why the bag ban exists or why towns should be able to have these types of bans, the City of Bisbee does not have the authority to ignore state law and reach its policy goal by illegally imposing regulatory mandates on private citizens and businesses.”

In 2016, the Arizona Legislature passed HB 2131 (A.R.S. § 9-500.38), which prohibited cities, towns, and counties from restricting a retailer’s ability to offer plastic bags to customers. The Legislature identified the regulation of plastic bags as a statewide interest when passing HB 2131. Notwithstanding this state law, the Bisbee City Code bans retail establishments from providing single-use plastic carryout bags to their customers and provides a fee structure that forces retail establishments to charge a minimum of $.05 per recycled paper bag. Retail establishments face a fine of up to $500 per violation of the code.

Given the conflict between the city’s regulation and the state law, the only way for a charter city like Bisbee to avoid a violation of state law under SB 1487 (codified at A.R.S. § 41-194.01) would be to fall within one of the two narrow exceptions for matters of “purely local interest” that the Arizona Supreme Court confirmed in 2016 in connection with a prior investigation by Brnovich under SB 1487: the method and manner of conducting city elections; and the method and manner in which municipal real property is disposed. However, Bisbee’s carryout bag regulation fits within neither.

The investigation into Bisbee’s ordinance was prompted by a request from State Senator Warren Petersen, who filed a SB 1487 request inquiring whether Bisbee’s ordinance violates state law. Under SB 1487, Bisbee has 30 days to resolve the violation or the Treasurer will begin withholding state shared monies from the City of Bisbee.

This was the fifth investigation triggered by a member of the legislature under SB 1487 since its passage in 2016.

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