PHOENIX — Gov. Doug Ducey said Thursday he’s OK with local governments enacting their own ordinances that conflict with state law — as long as the issue is public health.
“I like to see uniformity,” the governor told Capitol Media Services. And Ducey has penned his approval to a state law that can lead to a city forfeiting half of its state revenue sharing if the attorney general determines that a local ordinance conflicts with state law.
But the governor said there are issues where he thinks local control might be appropriate.
“An exception that I would be open-minded to would be around public health and safety,” he said.
Ducey’s comments come just days after the Tucson City Council voted 6-1 to set the minimum age to sell tobacco products at 21. That ordinance — along with stiff fines for retailers who violate it — will kick in at the end of the year, though it includes a 90-day “education” period during which no penalties will be imposed.
“If the city of Tucson makes a decision to raise the smoking age to 21, who am I to argue,” he said.
But Ducey sidestepped questions about whether he would veto any legislation to remove local options — the kind of legislation approved by the House earlier this year before it failed in the Senate
That measure would have raised the age for purchase and sale from 18 to 21. But that proposal had a poison pill of sorts: It would block communities from enacting any new future local laws on the marketing and sale of both tobacco and vaping products.
Some cities already have such restrictions that go beyond existing state laws.
For example, Tucson not only licenses retailers but allows the city to suspend their licenses to sell all tobacco products if they’re found to have sold to anyone younger than 18. City officials said that penalty will apply to those who provide cigarettes or vaping devices to those younger than 21 once the new ordinance takes effect in April.
And Cottonwood, which also raised the age of sale and possession to 21, has criminal penalties for those who sell to those younger than 18 and fines for those who sell to someone age 18 through 20.
The Senate version, sponsored by Sen. Heather Carter, R-Cave Creek, was mainly designed to impose tighter restrictions on vaping. It would have left the minimum age for tobacco use under state law at 18 but preserved the ability of local governments to have their own restrictions.
That stalemate over smoking age and local preemption tees up the issue for debate when lawmakers reconvene in January, with retailers — and the lawmakers who support their position — still wanting a uniform state law and no local exceptions.
Ducey has a record of signing laws designed to limit the ability of local communities to set their own policies and laws.
For example, he penned his signature on legislation that pretty much strips cities of the ability to regulate vacation rentals like Airbnb. He also approved a measure to override the right of cities to require that certain nonprofit organizations who seek to influence elections must both register and divulge who is financing the efforts.
And then there’s a 2016 law signed by Ducey which allows the withholding of half of any community’s state revenue sharing — millions of dollars — if the attorney general determines that a local ordinance runs afoul of state statutes.
But Ducey declined to say what would happen if a measure to preempt local tobacco ordinances were to hit his desk.
“I think that’s a hypothetical,” he said.
“I really would need to see the specifics of the bill,” the governor continued. “I don’t want to give a hard-and-fast rule when I can’t evaluate the efficacy of the policy.”
The danger to local ordinances comes not just from possible legislation.
State Rep. T.J. Shope, R-Coolidge, has asked Attorney General Mark Brnovich for a legal opinion about whether the existing state law setting the age for purchase of tobacco at 18 already trumps any local laws to the contrary.
If Brnovich agrees, that in turn could trigger the 2016 law — the one that Ducey signed on preemption — and pave the way for legal action to force cities to either rescind their ordinances setting the minimum age at 21 or give up the revenue sharing that amounts to a large share of their budgets.
Brnovich, who has had the request since early August, has given no indication when he will issue his findings.