HomeMy WebLinkAbout2004-049 Limiting Minors Accessibility to Certain Graffiti Implements ORDINANCE NO 2004- 49
AN ORDINANCE relating to Public Safety and Morals, limiting minors accessibility to
certain graffiti implements, establishing standards for retail display
and storage of certain graffiti implements, adding a community
service requirement to the penalty; and amending section 6 50 030
and section 6 50 050 of the City of Yakima Municipal Code
WHEREAS, the City Council of the City of Yakima finds that graffiti is a public
nuisance that tarnishes the image of the city, causes neighborhoods to deteriorate,
encourages other crime, erodes property values, consumes city resources, and
undermines the sense of well- being, safety and pride that citizens feel for their
community Accordingly, the City Council of the City of Yakima declares that the
purpose of these amendments are to further communicate a zero - tolerance message to
anyone intending to violate the provisions of this section
BE IT ORDAINED BY THE CITY OF YAKIMA.
Section 1 Section 6 50 030 of the City of Yakima Municipal Code is hereby
amended as follows
6 50 030 Prohibited acts.
A. Possession of Graffiti Implements
1 It shall be unlawful for any person under the age of eighteen years to
possess any graffiti implement while on any public or private property,
other than the minor's residence The minor's residence does not include
the common areas of any multiunit residence It is an affirmative defense
to a violation of this subsection, which the defendant must prove by a
preponderance of the evidence, that (1) the individual in possession of the
graffiti implement was attending or traveling to or from a school at which
the individual was participating in a class that formally required the use of
the graffiti implement or (2) that the individual had express permission to
possess the graffiti implement from the owner or legal occupant of the
property on which the graffiti implement was possessed
2 It shall be unlawful for any person to possess any graffiti implement
while in or upon any public facility, park, playground, swimming pool,
recreational facility, school or other public building or structure The terms
"Public Facility," and "Public Buildings or structures" do not include public
streets or alleys It is an affirmative defense to a violation of this
subsection, which the defendant must prove by a preponderance of the
evidence, that (1) the individual in possession of the graffiti implement
was attending or traveling to or from a school at which the individual was
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participating in a class that formally required the use of the graffiti
implement or (2) that the individual had express permission to possess
the graffiti implement from the owner or legal occupant of the property on
which the graffiti implement was possessed
3 Possession of graffiti implements is a gross misdemeanor
B. Accessibility to Graffiti Implements
1 Furnishing to Minors Prohibited
It shall be unlawful for a person, other than a parent or legal
guardian to sell, exchange, give, loan, or otherwise furnish, or
permit any person under the age of eighteen (18) years of age to
possess any aerosol paint container, broad - tipped marker, or paint
stick.
2 Display and Storage
a Every person who owns, conducts, operates, or
manages a retail commercial establishment selling aerosol
paint containers, paint sticks, or broad - tipped markers shall
store the containers, sticks or markers in an area
continuously observable, through direct visual observation or
surveillance equipment, by employees of the retail
establishment during the regular course of business.
b In the event that a commercial retail establishment is
unable to store the aerosol paint containers, paint sticks, or
broad tipped markers in an area as provided above, the
establishment shall store the aerosol paint containers,
sticks, and markers in an area not accessible to the public in
the regular course of business without employee assistance
3. Each violation shall be a separate and distinct offense
4 It shall be defense to a violation of this subsection, that the
person who sold, gave or furnished any aerosol paint container,
broad tipped marker, or paint stick reasonably relied on an officially
issued identification that shows the purchaser's age and bears his
or her signature and photograph As used in this section "officially
issued identification" shall include driver's license, instruction
permit, or identification card of a state or providence of Canada, or
identicard issued by the Washington State Department of licensing
under Chapter 46 20 RCW, passport, or merchant marine
identification card issued by the United States Coast Guard
5. Any person who wrongfully sells, displays or stores graffiti
implements shall be guilty of a civil infraction with a penalty in the
amount of one hundred dollars. For any second or subsequent
violation of this section the penalty shall be in the amount of two
hundred and fifty dollars.
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Section 2 Section 6 50 050 of the City of Yakima Municipal Code is hereby
amended as follows
6 50 050 Miscellaneous
A. Any minor violating this chapter shall be subject to the jurisdiction of
juvenile court pursuant to Title 13 of the Revised Code of Washington
B Restitution In addition to any punishment specified in this ordinance, the
court shall order any violator to make restitution to the victim for damages or Toss
caused directly or indirectly by the violator's offense in the amount or manner
determined by the court.
C Community Service As part of the penalties specified in this section, the
court shall order any violator to perform community service under the supervision
of a community service provider approved by the Chief of Police. Reasonable
effort shall be made to assign the violator to a type of community service that is
reasonably expected to have the most rehabilitative effect on the violator,
including community service that involves graffiti removal.
CD Severability If any clause, part or section of this chapter shall be
adjudged invalid or unconstitutional, such judgment shall not affect or invalidate
the remainder of this chapter nor the application of any such clause, part or
section to any other person, but shall be confined in its operation to the clause,
part or section directly involved in the controversy in which such judgment was
rendered
Section 3 This ordinance shall be in full force and effect 30 days after its
passage, approval, and publication as provided by law and by the City Charter
PASSED BY THE CITY COUNCIL, signed and approved this 17th day of
August , 2004
(Fa-LA-0g
ATTEST Paul P George, Mayor
City Clerk
Publication Date 8 -20 -2004
Effective Date 9 -19 -2004
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(Ik)ord- graffiti cm
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No I(o
For meeting of August 17, 2004
ITEM TITLE. An ordinance relating to Public Safety and Morals, prohibiting the sale of
certain graffiti implements to minors, establishing standards for retail
display and storage of certain graffiti implements, adding a community
service requirement to the penalty; and amending Section 6 50 030 and
Section 6 50 050 of the City of Yakima Municipal Code
SUBMITTED BY Sam Granato, Chief of Police
Cynthia I Martinez, Assistant City Attorney
CONTACT PERSON /TELEPHONE. Cynthia I Martinez, 575 -6033
SUMMARY EXPLANATION The Yakima City Council enacted a new graffiti ordinance
approximately one year ago At that time it was requested that the graffiti ordinance be reviewed
for possible changes following a year of enforcement and clean -up efforts The attached Graffiti
Paint -Out Program report and the proposed amendments to the City of Yakima Municipal Code
are attached for City Council's information These proposed amendments to the graffiti
ordinance would make the sale of certain graffiti implements to minors an infraction, would
establish standards for the retail display and storage of certain graffiti implements, and would add
a requirement of community service hours spent removing graffiti to the graffiti ordinance penalty
(summary explanation continued on page 2)
Resolution Ordinance X Other (Specify)
Contract Mail to (name and address)
Phone
Funding Source
APPROVED FOR SUBMITTAL. - O.\
City Manager
STAFF RECOMMENDATION Pass Ordinance
BOARD /COMMISSION RECOMMENDATION The Yakima City Council Public Safety
Committee is forwarding the attached ordinance to the full council for consideration The
Committee was unanimously is favor of the proposed changes except for Sections B(2)(a) and
B(2)(b) There were divided opinions from committee members regarding these Sections The
committee felt the entire City Council should discuss the proposed amendments at its meeting
Tuesday, August 17, 2004 The Yakima City Council is not required to pass the ordinance at this
meeting, but may wish to consider further amendments for enactment at a later date
COUNCIL ACTION ORDINANCE NO. 2004-49
Continuation of Summary Explanation of Agenda Statement re Graffiti
August 17, 2004
The proposed amendments to the graffiti ordinance is the product of an ongoing collaborative
effort between the City Council Public Safety Committee and a group of concerned citizens who
have suggested these additional regulations to help prevent the blight of graffiti In October of
2003, a comprehensive graffiti ordinance went into effect. Since that time, 75 individuals have
been arrested for performing acts of graffiti within the City of Yakima Of those arrested, 83%
were juveniles In January of 2004, with the support of the Yakima City Council, the City of
Yakima implemented a Graffiti Paint -Out Program This program utilizes volunteer and inmate
labor Since its inception the Graffiti Paint -Out Program has painted 4,392 locations within the
City of Yakima The Yakima City Council has made improving our community image a top priority
and these proposed amendments to the City of Yakima Municipal Code will further that goal
(Ik) agenda /grafagenda.cim
CITY OF YAKIMA PAINT OUT GRAFFITI
(Report generated August 10, 2004)
From Jan 1, 2004 to August 9, 2004
• 4392 locations have been painted.
• 1020 gallons of paint have been used.
• 755.5 volunteer hours have been applied.
• $7,550 of federal matching requirements met.
• $13,025 CDBG money has been spent to date
• $16,000 CDBG budgeted for 2004
• $19,260.00 worth of local donated contributions.
The Graffiti hotline receives an average of six phone calls a day reporting graffiti.
Pamts an average of 24 locations a day.
Apphes an average of 5 '/ gallons a day
Now due to overwhelming support by local paint supply vendors and donations, and paint
from Yakima County Waste, paint average cost is $0 . per gallon; paint is free at this
date.
Volunteers included people from such agencies as:
• Davis High School
• Eisenhower High School
• Epic's "Get Set Program"
• Habitat for Humanity
• Local church groups
• YPD inmates
• Juvenile Court community service
• City of Yakima Probation
Paint Out Graffiti Summary for 2003
March 1, 2003 thru Dec 30, 2003
• 5284 Locations painted
• 1380 Gallons of paint used
• 600.5 Volunteer hours
• $6005.00 Federal matching requirements met
• $20,616.62 Misc. Donations received
• $15,000 City budgeted
Over 1100 permission slips signed by City of Yakima residents.
Equipment donated: 79 suburban
Equipment purchased: Two airless paint sprayers
One generator
Misc. Brushes, rollers, sprayer filter,ect
4 plastic 55gallon drums
Paint pump
The largest budget expenditures for 2003 was paint.
In 2003 the Paint Out Graffiti Program concentrated on eliminating the years worth of
accumulation of graffiti in the neighborhoods of Yakima. The greatest accumulation
being in the North East, north of Yakima Ave and east of 1' street, and South East, south
of Yakima Ave and east of 1 street.
In 2004 we have been continually expanding our service area to not only include the
North East and South East sections of the city, but to include north of Yakima ave,
between 1 street up. to 40 avenue. These three sections of the city are the most
consistently hit areas in order of frequency and concentration.
In 2004 we have began to notice more and more widespread graffiti being painted on
masonry buildings as well as street signs. As with any advertiser, a "Graffiti Tagger",
wants their billboard to stay in the pubhc eye as long as possible. Therefore, they are
responding by our painting over their graffiti by shifting to surfaces we either cannot
paint or takes us much longer to remove the graffiti.
We receive approximately 5 calls a month thru the graffiti hotline from Brick or Stone
faced building owners that have had their structures painted with graffiti. Most of these
property owners ask if we can advise them on how they themselves can remove the
graffiti. At this time we refer them on to private contractors within our area that own and
operate either soda ash pressure washing equipment or if its an unglazed masonry or
rough surfaces stone or concrete finish we suggest sandblasting. Both of these methods
include special equipment, experienced personnel to operate and has a cleaning agent that
has to be dealt with afterwards. Because of the expense of the equipment involved, the
trained personnel needed and the time and expense of cleaning up afterwards, we
continue to only paint over graffiti.
The streets department does replace signs that are brought to their attention as
expediently as possible. Some effort is taken to clean various signs at their locations, but
few can be cleaned of the graffiti without damaging the signs printing.
When comparing the 2003 statistics and the 2004 statistics it must be kept in mind that m
2003 the accumulation of graffiti was closely concentrated. This made it possible for our
single crew of one driver and one spray operator to drive up an alley and work both sides
of the alley and hit 80 to 100 locations in an 8 hour period, without much traveling or
time between locations. The concentration also allowed us to use large groups of
volunteers, by supplying them with buckets of paint, brushes or rollers and walking them
up the alleys or streets painting out graffiti.
Now in 2004 we are dealing mostly with re- occurrence graffiti, which is sporadic and can
be spaced blocks apart thru out the city, requiring time and travel between locations.
This of course slows down the two crews we have now and hinders the use of volunteers
because of logistics of transportation and the time between locations, as well as
• transporting large paint volumes as well as the trouble of transporting paint coated
brushes and equipment.
The last three months we have seen a growing trend of graffiti growing more sporadic
and not so densely packed. This I believe is due to the fact that YPD's increased gang
efforts and their catching more and more graffiti taggers is indeed sending the message
thru out the graffiti tagger community that they need to keep moving using hit and run
tactics to keep from getting caught. Where before, taggers sprayed entire alleys for block
after block, using the same paint in one long continuous un- interrupted crime spree of
painting graffiti.
May 7, of this year YPD began using 2 city jail inmates to paint over graffiti. This has
doubled our capacity from the single paint out graffiti suburban to using two crews, the
oriiiial paint out graffiti vehicle with a city driver, continuing to use volunteers as they
are available, but also working the guard as a driver and two city inmates as equipment
operators. YPD has been working Tuesdays, Thursdays and Fridays, five hours a day
painting over graffiti. This has expanded the program significantly and allowed us to
cover a larger portion of the city It has also helped us increase our capacity to work and
schedule volunteers, not only in the paint out graffiti program,but in the Neighborhood
Clean up program.
We also hired a full time employee to help combat graffiti, Mr. Mike Kelso drives the
paint out graffiti suburban, works with volunteers, cleans and maintains both the
suburban and its equipment as well as YPD's equipment, collects and prepares paint,
tracks permission slips and addresses and deals with the public concerning graffiti
matters.
We have also gained increasingly more public support from mdividuals calling in graffiti
immediately after it happens as well as increased support from property owners taking it
upon themselves to paint over their own properties, as well as helping their neighbors.
We have also been encouraging property owners to buy their own paint matching their
existing building color and calling us when they get vanclali7ed and we will apply their
paint to their structure eliminating the "Calico effect". This quick response to
immediately cover over graffiti as quickly as possible discourages the taggers.
We have also been working with the probation departments, the local troubled youth
organizations as well as the community accountability boards to provide community
service hours to Juveniles who are caught vandalizing local properties. We also work
with the local schools in providing education and community service hours in painting
over graffiti as a way of showing them the impact graffiti has on our city and society.
(When reviewing this report please remember that both the 2003 and the 2004
statistics do not reflect full years, also take into consideration they reflect different
time frames in those respective years, therefore are not actual comparables.)
I have been at this for the last 6 years since the first, "Paint Out Graffiti Month of April"
was declared by Mayor Mary Place and it is my opinion that we are definitely seeing
improvement. But its also my opinion that this is an on going battle that will decrease
with time, but will never go away and will always need to be addressed by using our
Anti- Graffiti ordinance, Law Enforcement and the Paint Out Graffiti Program together to
keep Yakima attractive.
• Accumulation has been addressed
• Re- occurrence graffiti is slowing.
• Response time to graffiti complaints has decreased.
• Capacity to paint over graffiti has increased.
• Volunteers have increased.
• The service area we are able to cover has increased.
Questions about this report or requests for up dated statistics can be directed to
Neighborhood Development Services at 575 -6101.
Respectfully,
Archie M. Matthews
Senior Program Supervisor
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Created: Jane 19, 2003
CITY OF YAKIMA Distribtuion limited to: Council, Zais,
Rice, and Paolella
LEGAL
DEPARTMENT
200 South Third Street Yakima Washington 98901 -2830 phone (509) 575 -6030; fax (509) 575 -6160
Privileged and Confidential Covered by the Attor - - -
and Attorney Work Product Privileges CITY RECEIVED I
Memorandu AUG 52004
Date July 28, 2004 OFFICE OF CITY MANAGER
To Dick Zais, Yakima City Manager
From Cynthia I Martinez, Assistant City Attorney
Re Proposed City of Yakima Graffiti Ordinance
I am attaching to this memorandum the proposed Graffiti Ordinance As you
will notice there are two items that were discussed at the study session on June 9,
2004 that are missing from the proposed ordinance The two items are a graduated
penalty for the crime of graffiti and a provision providing that parents be held
monetarily liable for the graffiti acts of their children I have not included these items
because they pose constitutional questions that lead me to advise against inclusion
1 The City of Yakima may not punish graffiti perpetrators differently than State
Law. Graffiti violations are currently punished under RCW 9A.48 090 as a gross
misdemeanor subject to 365 days in jail and /or up to a $5,000 00 fine There
are no mandatory minimum penalties under state law The City of Yakima has
an identical ordinance YMC 6 04.235 The statute that authorizes a City of the
first class, such as Yakima, to punish misdemeanor and gross misdemeanor
crimes specifically provides that; "The punishment for any criminal ordinance
shall be the same as the punishment provided in state law for the same crime "
RCW 35.22.280(35) The statute prevents the City from imposing mandatory
punishment that is not provided for under state law
2 Under state law imposing monetary liability on parents or guardians is a civil
remedy obtained in a civil law proceeding. State law provides that a parent of a
minor who willfully or maliciously destroys property shall be liable to an owner in
a civil action at law for damages not to exceed five thousand dollars RCW
4.24190 (paraphrased) If adopted, an ordinance that holds a parent or
guardian liable through a criminal proceeding involving their minor child, would
contradict state law Further, I believe such an ordinance would violate
procedural due process
r
Memo to Dick Zais
July 28, 2004
Page - 2
Procedural due process requires notice and opportunity to be heard, before or
immediately after, an official action that impinges upon a person's constitutional
rights In this case, such notice and opportunity to be heard would have to occur
before or immediately after a parent is held monetarily liable for the acts of their
child The Washington Supreme Court takes a dim view of statutes that violate
procedural due process In fact, recently the Supreme Court reversed
mandatory license suspensions because the statute does not entitle the drivers
to a hearing prior to, or immediately after, the effective date of the suspension
City of Redmond v. Moore and Wilson, No 72614 -1, filed June 3, 2004
In a juvenile court criminal proceeding, the parent or guardian of an accused
minor child is not a party to the action While parents and guardians are
informed of their child's whereabouts, they do not receive notice of any pending
liability for their child's actions, nor are they entitled to be heard during the
course of the criminal proceedings against their child In contrast, a parent or
guardian would be made a party to a civil action and would have an opportunity
to be heard during the course of the civil proceeding
Contradictory state law and the recent Washington Supreme Court decision lead
me to believe a City ordinance that holds a parent or guardian monetarily liable as a
result of a criminal action against their child, would be deemed unconstitutional and
thereby unenforceable
cc. Sam Granato, Chief of Police