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Bisbee Wire/ Special/City Functions in wake ofl fire/city attorney response to AG

Hello again,

In the wake of the fire today, interim manger Robert Smith held a news conference and put out the  email  below n afternoon to the council and city employees this evening. Some city services have already been restored and others will be over the next few days. Public works, police and fire are operational.

Also the text of the letter sent to the AG by city attorney Britt Hanson regarding the complaint about the plastic bag ban is below.

The fire continued to smolder into the afternoon and this evening Arizona St. was blocked in front of city hall and there was a police and fire presence.



From: Robert Smith Sent: Wednesday, October 11, 2017 6:07 PM To: Council Cc: Ashlee Coronado; Albert Echave; George Castillo; Dwayne Wallace; Albert Echave; Keri Bagley; Monica Flores; Joe Ward; Edward T. Gilligan; Howe, Jay;; Sturm, Norman A Subject: Fw: Ongoing response

Council -

EMS, Fire and Police did a great job of containing the fire and protecting life and property. The voluntary and cooperative support from other departments, the public, county and businesses was overwhelming -- I cannot describe it, we were blessed.  

As the fire came under control, county forces  stepped in to control the scene and investigate the fire - we are bringing in structural and environmental engineers to determine if entry of the scene is safe.  The County will handle the investigation.

Simultaneously, staff has been working together closely today to move forward and ensure that our operations continue.

Public safety related missions were never interrupted, but administrative processes have temporarily halted.  Today, staff has planned short and mid range action to expedite a return to services, and with a lot of help should be back to functioning by Monday.  We are regularly interfacing with the public to keep up information and news, and to ensure people know how to request services from the City.

PD and Fire are fully operational and on normal schedules.  Public Works is also back up and running, they are administratively located at the waste water treatment plant temporarily.  A new number is 432 3737 for the public's use to contact public works...

City Clerk, Finance, HR, Grants, Community Development and my Offices are compromised -- however the County has graciously provided space and we will be moving in later this week.(at the Melody Land complex)  The data server was saved, is back up and running at the PD, and we completed payroll today.  I am meeting with staff first thing in the morning to kick off the day and then at lunch, and we will begin logistics to facilitate our move into the county's space.  Staff will be meeting as a group twice a day (morning and night) to facilitate the best possible coordination, continuation of service and transition into the new County office space.

I cannot say enough about the performance of our staff, their professionality and depth of knowledge and training really stood out today, as did the community's support.  We could not have hoped for a better response.

I did not have much opportunity to focus on Council today and communications were limited as well as compromised, however, I am working to improve our channels so Council is more up-to-date.  We are working to ensure that Council meetings and commission meeting stay on schedule, and I will be communicating more with you tomorrow so we are all up-to-date with the status of staff's responses.

Rest easy knowing our first responders did an incredible job, public safety and response is operational, critical infrastructures are operational and we have a plan for moving forward.  I'll have more details in your hands asap.



This is city Attorney Britt Hanson's response to the complaint to the AG from Senator Peterson (Mesa). I have omitted some photos he included in his response that illustrate the significant difference before and after the ban.

********** To: Attorney General Mark Brnovich; Oramel H. (O.H.) Skinner, Unit Chief Counsel From: Britt W. Hanson, City Attorney Date: October 10, 2017 Subject: Plastic Bag Ban – Challenge to the City’s Ordinance Under SB1487 ____________________________________________________________ The City of Bisbee is a charter city formed under Art. XIII, § 2 of the Arizona Constitution. On September 13, 2013, pursuant to the City Charter, the City Council enacted Ordinance O-13- 14, which prohibits retailers from providing single use plastic bags to customers. In 2016, the Legislature passed HB 2131, codified as A.R.S. § 9-500.38, forbidding cities from enacting such ordinances.

THE PROBLEM This tight knit community of 5,200 near the Mexican border cares deeply about our living conditions. One condition that beset the City was the litter and blight caused by plastic carry out bags. These bags are like little parachutes: the slightest breeze will send a bag sailing until it catches on something. Throughout the City, when plastic bags were dispensed to shoppers, plastic bags would occasionally blow from shoppers’ hands until they caught on mesquite and other trees and bushes. Multiply this by numerous such occasions and you have a blighted mess in short order. To remedy this blight, citizens volunteered to clean up this and other areas blighted by plastic bags.

THE SOLUTION Rather than rely on the repeated vigilance of volunteer groups, the City resolved to solve theplastic bag blight more permanently. In 2013, the Mayor and Council enacted Ordinance O-13-14, which prohibits retailers from providing single use plastic bags to customers. Shoppers are encouraged to bring reusable cloth bags when shopping. At many retail stores, including Safeway, paper bags are made available to customers if they do not have reusable bags. This solution has been extraordinarily successful. (photo here)

The bag ban has also saved taxpayer dollars. According to Bisbee’s Public Works Director, Andy Haratyk, before the bag ban he had crews cleaning up plastic bag litter along highways. (See the attached letter from Haratyk). This was done every other week, stretching the City’s resources. He no longer needs to do this, saving the City a significant amount of money. Haratyk also observes that before the ban, plastic bags cluttered alleyways because “[w]hen a garbage truck picks up a dumpster the first item to fly out of the dumpster is usually a single use plastic bag.” The problem with plastic bag litter was particularly acute at the City’s solid waste transfer station. “I had become so accustomed to the bag litter that I stopped noticing it—that is, until we stopped using plastic bags and I saw the other transfer stations in the system that are still plagued by plastic bags.” (The County has had a similar problem with plastic bags at the landfill. After complaints from neighboring ranchers and others reached ADEQ about bag litter emanating from the landfill, the County, after having a crew of twenty men clean up the litter, finally had to erect an 18 foot screen around the landfill to control the bag litter)

LOCAL CONCERN No reasonable person could claim that the problem caused by plastic bag blight is not a matter of local concern to the citizens of Bisbee. Nor could any reasonable person claim that the successful solution to that problem—the plastic bag ban—is not a matter of local concern. This is just common sense. Would a person rather live in a community blighted by plastic bag litter, as depicted in the first photo, or in a community without that kind of blight? And, for Bisbee, with an economy fueled by tourism, it is a matter of economics as well.Would a person rather visit a community blighted by plastic bags, or one that is clean and green (photo here)

The economic interest in eliminating blight is particularly important for Bisbee. One of the primary draws for tourists is Bisbee’s aesthetics: it is an historic Arizona town, listed on the National Register of Historic Places. In 2016, readers of Sunset magazine named Bisbee the best small town in the West to live, while readers of USA Today named Bisbee the Best Historic Small Town in the United States. And that blight and litter is a matter of local concern is not just common sense. Arizona courts have consistently recognized that remedying blight is a legitimate municipal concern: Eg., “protecting aesthetic values by avoiding visual clutter is a constitutionally sanctioned objective for a municipality.” State of Arizona v. Watson, 198 Ariz. 48, 53 (Div. 1 2000)(upholding the Constitutionality of a Phoenix ordinance prohibiting visual blight and hazardous accumulations of garbage and debris on one's premises). And just as envisioned by the framers of Arizona’s Constitution, as a charter city Bisbee was entitled to enact the plastic bag ban as a solution to the problem pursuant to Art. XIII, § 2 of the Arizona Constitution. See City of Tucson v. Grezaffi, 200 Ariz. 130, 135, 23 P.3d 675 (Div.2 2001)(upholding regulation of smoking in restaurants as a matter of local concern pursuant to Art. XIII, § 2).

And what is the State’s interest in making Bisbee reverse its plastic bag ban and revert to blight and litter? It’s hard to say. 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. Nor do the Senate Fact sheet or House summary for HB2131 say what that concern might be.

Section 5 of HB 2131 (added, oddly, by the Senate Rules Committee) does contain a legislative finding: “The legislature finds that small businesses are particularly sensitive to costs and expenses incurred in complying with regulatory actions of a city, town or county. The legislature further finds that inconsistent regulation by cities, towns and counties hinders a small business from benefiting from free and open competition.”

But 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, either as a general proposition or specifically as related to a local plastic bag ban. In fact, during the January 27, 2016 hearing of the House Commerce Committee, where the bill was introduced, none of the members of the House Commerce Committee gave any rationale for supporting HB 2131. None. They just passed it out of Committee.

During the House Commerce Committee discussion of HB 2131, no member, pro or con, showed the slightest curiosity as to why Bisbee—the only jurisdiction in the State with a bag ban, with three and a half years of experience with it under its belt—passed its bag ordinance, whether it achieved its objective, or whether retailers or customers felt burdened by it. If they had, they would have found that Bisbee’s retailers have embraced it. And it has actually saved them money. According to Pam Rodrigues, the owner of Acacia on Main Street:

Not only have I not incurred additional costs and expenses, the plastic bag ban has saved me between $500 and $600 per year in the cost of bags. As for customer reaction, I have received no negative feedback from my customers, most of who are from out of town. In fact, many customers, when told that I cannot provide a plastic bag, have responded that they appreciate it and wish their city had a similar ban on plastic bags. No one likes the unsightly litter that they cause.

(Ms. Rodrigues’ letter was attached to the response)

Also attached is a petition signed by 43 of Bisbee’s local business owners, gathered on a moment’s notice, supporting the plastic bag ban—and refuting the unsupported legislative findings that the bag ban that the bag ordinance has imposed costs to comply, or that it in any way hinders them from benefiting from free and open competition.

It should be noted that in its conception Bisbee’s plastic bag ban ordinance was in no way anti-business. In fact, Bisbee’s largest retailer, Safeway, provided the City with the model ordinance on which Bisbee based its plastic bag ban ordinance.

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 any interest in prohibiting Bisbee from doing so?

And really, who should decide how best to combat Bisbee’s blight and litter problem: 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? The passage of this bill is a poster child as to why local control of some matters is a much more effective manner of governing than from afar—and why the framers of Arizona’s Constitution provided for charter cities’ home rule in Article XIII, § 2.

TEST: LOCAL VS. STATEWIDE  CONCERN Where a State law might conflict with a local ordinance, the test set forth by the Arizona Supreme Court in Strode v. Sullivan, 72 Ariz. 360, 365 (1951) asks “whether the subject matter is characterized as of statewide importance or purely local interest”. In State ex rel. Mark Brnovich v. City of Tucson, No. CV-16-0301-SA, pp. 16-17 (2017), the Court specifically declined to jettison the Strode test, as urged in a concurring opinion. In so declining, the majority observed that “assuming it is constitutional, a state statute on any particular topic will always trump and invalidate a political subdivision’s conflicting ordinance, even if the topic indisputably is solely and purely one of local concern. Under that view, one must wonder what is left of charter cities’ authority under article 13, section 2.”

Indeed. If Bisbee’s exercise of its charter powers to eliminate local litter and blight can’t survive, it’s hard to imagine what possibly could. The notion of charter cities would become a joke. And Article XIII, § 2 will become a joke along with it. And the intent of the framers of Constitution in passing that provision, described by the Supreme Court in City of Tucson v. Walker, 60 Ariz. 232, 238 (1943) as “to render the cities adopting such charter provisions as nearly independent of state legislation as was possible”, will have been eviscerated. The Legislature could crush any independence of charter cities, and thus override the Constitution, simply by declaring anything to be a matter of statewide interest, as they have attempted to do here.

Bisbee’s plastic bag ban ordinance a) was designed to address a specific local problem; b) is narrowly drawn to address that problem; c) has been very successful in eliminating that problem; and d) was, at the time it was enacted, unquestionably a Constitutional exercise of its charter city powers. Under these circumstances, Bisbee’s bag ordinance should be deemed to be of purely local interest pursuant to Strode. Although such a test is stringent, at least it will leave some home rule authority to charter cities pursuant to Article XIII, § 2.

CONCLUSION The community wishes for this area, and the rest of Bisbee, to remain free of plastic bag litterinto the future, as it is today.



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