Consideration of Ordinance No. 2013-20: An Ordinance adopting the prohibition of intentionally, knowingly or recklessly feeding wildlife.

The Flagstaff Police Department, in collaboration with the Arizona Game and Fish Department, is requesting the approval of Ordinance 2013-20, which would prohibit the feeding of wildlife, with exception to birds and squirrels.

There is no financial impact to the City of Flagstaff by adopting this ordinance.

Effective governance by responding to community concerns.

Yes, there has been prior discussion of a proposed ordinance. During the Council work session on May14, 2013, Larry Phoenix with the Arizona Game and Fish Department presented Council with the Power Point presentation, “Wildlife Anti-Feeding Ordinance.”  At the conclusion of the presentation, staff was directed by Council to move forward with review of an ordinance. Additionally, at the August 26, 2013, meeting the City Council held discussion and received public input, and ultimately amended the ordinance and held first reading.

1) Adopt Ordinance 2013-20 making it unlawful to intentionally, knowingly or recklessly feed wildlife
2) Do not adopt Ordinance 2013-20
3) Amend the ordinance with consideration of the options listed under Expanded Options and Alternatives in this communication.
 

In the past several years the Arizona Game and Fish Department has received several complaints from citizens in Flagstaff regarding the intentional feeding of wildlife, specifically deer and elk. Intentional feeding attracts wildlife to a specific area and over a very short course of time they become habituated to humans and become a nuisance. It has also been reported they damage the property of homeowners. Once attracted and habituated to humans, they pose a public safety concern as wildlife become dependent on humans for food, less wary of humans and may become dangerous, unpredictable and aggressive. Feeding will also create unnatural crowding and can attract predators such as coyotes, lions, bobcats and bears. One person feeding could potentially cause problems for themselves and surrounding neighbors by drawing predators into the area. There are also concerns that the food source that is being used can actually harm wildlife as it is usually not formulated for consumption by wildlife and can especially harm young animals. Feeding will also concentrate wildlife and increase animal to animal contact further spreading disease such as eye and respiratory infections and in many cases rabies.   
 
The City of Flagstaff and the Flagstaff Police Department have worked in collaboration with the Arizona Game and Fish Department on drafting this ordinance in an effort to address public concerns, public safety and the welfare and safety of wildlife.

It is hoped that by adopting Ordinance 2013-20 it will regulate the intentional feeding of wildlife by taking a proactive approach to feeding issues that are a concern to the citizens of Flagstaff and the Arizona Game and Fish Department at both the state and regional level. This ordinance will help address public safety and nuisance wildlife issues associated with feeding activities. Any peace officer in the state may enforce revised statutes and many city ordinances. It is intended that an officer with the Arizona Game & Fish Department can enforce this ordinance as the Flagstaff Municipal Court will accept citations issued by a state certified law enforcement officer. 
 
Arizona Revised Statute Sec. 13-2927 does prohibit the feeding of wildlife; however it only applies in counties with a population of more than two hundred eighty thousand (280,000) persons. (Coconino County’s population is 134,511 as per the 2011 census.) Therefore, there are no state statutes or county ordinances that prohibit the feeding of wildlife.  The Flagstaff Police Department has been in communication with the Coconino County Sheriff’s Department and they have had recent discussions with County administration about adopting an ordinance as well. The Arizona Game and Fish Department has approached the Coconino County Board of Supervisors on three separate occasions, but for reasons unknown, the ordinance has not gained any traction.   
 
Within the State, several other counties and municipalities, including Navajo, Cochise, and Gila Counties, as well as the cities of Pinetop-Lakeside and Showlow, have adapted wildlife feeding ordinances. However, they are specific to the issues regarding bears, coyotes, javelinas, and mountain lions. In 2012, the City of Scottsdale enacted an ordinance prohibiting the feeding of wildlife that is specific to their city parks only and does not encompass other properties, public or private within the city limits.   

The Flagstaff Police Department and the Arizona Game and Fish Department believe that increased education is the key element of this ordinance. It will also deter individuals from feeding wildlife in areas that are impacted by wildlife. The ordinance will be enforced based only on complaints generated by the public.  

The Flagstaff Police Department and the Arizona Game and Fish Department believe that increased education is the key element of this ordinance. It will also deter individuals from feeding wildlife in areas that are impacted by wildlife. Once again, the ordinance will be enforced based only on complaints generated by the public.  
 
The proposed ordinance and staff summary will be posted in accordance with law, and interested persons are invited to comment at the City Council meetings at which the ordinance will be under consideration.
 
A public outreach meeting was held on July 22, 2013, at the Flagstaff Police Department and a second public outreach meeting was held on August 12, 2013, at the Arizona Game and Fish Department. The meetings were advertised in the Arizona Daily Sun, The City of Flagstaff web page, the Flagstaff Police Department Facebook page and Twitter.   
 
On July 22, 2013, the first of two public meetings was held. A Power Point presentation was given by Game and Fish Officer Larry Phoenix, and Assistant City Attorney Marianne Sullivan was present to answer legal questions. There were twenty (20) people in attendance with a group of five (5) people who are opposed to the ordinance. Some that are opposed to the ordinance voiced concerns that the City does not need any more ordinances, while at least one individual voiced concerns that the ordinance was specific to the homeowners of Continental Country Club. One individual felt that the feeding of deer and/or elk was not the reason for attracting wildlife, but instead the availability of water in the area. At the conclusion of the meeting the question of whether or not the proposed ordinance could be put to a vote by City residents, rather than decided by the City Council was raised.  Four (4) people in attendance voiced support for the ordinance with the remaining eleven (11) not voicing support or opposition.  
 
On August 12, 2013, the second public meeting was held at the Arizona Game and Fish Department. Game and Fish Officer Larry Phoenix gave a Power Point presentation and Assistant City Attorney Marianne Sullivan was again present to answer legal questions. There were twelve (12) people in attendance; seven (7) in attendance were present at the last meeting. Out of the twelve (12) citizens in attendance only two (2) voiced opposition to the ordinance. Four (4) in attendance voiced support, with the remaining six (6) not voicing support or opposition.
 
Much of the opposition revolved around the information provided by Larry Phoenix. He was continually challenged over the habituation of wildlife to humans, the attraction of wildlife due to intentional feeding and the concentration of wildlife to a specific area, which increases animal to animal contact further spreading disease such as eye and respiratory infections and in many cases rabies. One citizen in opposition stated, “Feeding wildlife is a distraction, habituation to humans is not an issue nor is the concentration of wildlife.” This citizen believes that there is no harm in the intentional feeding of wildlife. He adamantly refutes any negative impacts feeding has on wildlife and also refutes any dangers wildlife may pose to humans.   
 
Those that voiced support, all of whom live in Continental Country Club, felt that the City in collaboration with the Arizona Game and Fish Department has a responsibility to not only protect the citizens but also to protect wildlife. One citizen stated, “As a community member who lives in the Country Club area I support the ordinance. The entire City has a responsibility to assist with wildlife issues.” This citizen further stated that she would support anything that would “keep wildlife wild. I appreciate the ordinance.” Another citizen also stated she lives in the Country Club area and said that her neighbors were feeding deer. What began with six deer has now turned into thirty and the neighbors have since moved. The deer have now become a nuisance on her property.  
 
At the conclusion of the meeting, Marianne Sullivan responded to the question of whether or not the Council had the option of sending the ordinance out to the public for a vote. She advised that the Council did not have that option, and if the ordinance were to be placed on a ballot, there would need to be a referendum sponsored by a citizen or citizen group. In response, one citizen stated that if the ordinance passed, he would sponsor a referendum to repeal it.

Options within the ordinance include all three culpable mental states of intentionally knowingly or recklessly which are defined as follows in A.R.S. Section 13-105 (10)

• “Intentionally” or “with the intent to” means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.
• “Knowingly” means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
• “Recklessly” means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.

Possible penalties include the following:

A) Petty Offense maximum is three hundred dollars ($300.00)
B) Class 3 misdemeanor maximum is five hundred dollars ($500.00) and thirty (30) days in jail
C) Class 2 misdemeanor maximum is seven hundred fifty dollars ($750.00) and four (4) months in jail
D) Class 1 misdemeanor maximum is two thousand five hundred dollars ($2,500.00) and six (6) months in jail

Changes requested by Council at First Read were made to the Ordinance including options regarding section 5 of the Exceptions section.

However, for Council's information, some additional changes were made regarding the penalty section. Specifically, the following language was added: "plus any other penalties, assessments or surcharges authorized by law." This language is standard language that is recommended to ensure any required court fines and fees may also be assessed by the court upon a conviction under this section. In addition, language spelling out the parameters of the class 3 misdemeanor fines and punishments was removed in the event the State law changes the penalties regarding misdemeanor offenses.  With this change, the ordinance would not have to be revised at a later date or multiple times.