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HomeMy WebLinkAbout05/06/2003 Adjourned Meeting 365 CITY OF YAKIMA, WASHINGTON ADJOURNED MEETING OF THE CITY COUNCIL MAY 6, 2003 - 7:30 A.M. COUNCIL CHAMBERS - CITY HALL 1. ROLL CALL Present: Council: Mayor Mary Place, presiding, Council Members Clarence Barnett, Paul George, Larry Mattson, John Puccinelli, and Bernard Sims Staff: Dick Zais, City Manager; Paul McMurray, Senior Assistant City Attorney; Jeff West, Senior Assistant City Attorney; and City Clerk Roberts Also: Ken Harper, consultant attorney Absent: Council Member Lynn Buchanan 2. STUDY SESSION ON PROPOSED GRAFFITI LEGISLATION Mayor Place stated the purpose of the is to review a proposed ordinance relating to the control of graffiti including the enforcement and penalties for citizens convicted of graffiti vandalism. She stated a citizen group brought the ordinance to Council asking that it be passed. ➢ The Proposed Ordinance is Presented Jim Beckett, a member of the citizen group, stated their goal is to create a graffiti -free city and encourage responsible behavior by passing a strong ordinance with punishment. Some of the things in the original ordinance provided to Council have been modified. He advised that people are here from the juvenile court system, prosecutor's office as well as others who are prepared to speak about the indirect costs to the community caused by the graffiti. Mayor Place agreed that Council would . discuss the modified ordinance dated 4/21/03 instead of the original ordinance. Kevan Montoya, attorney and a member of the citizen group, spoke about the origination of the proposed ordinance. The group used a model ordinance that makes possession of graffiti implements on public property, adjacent to public property, or on someone else's property without permission, an illegal act. The ordinance does not take away the US Constitutional protection of the 1 4 th Amendment or the Washington State Constitution. He named several provisions contained in the ordinance: • An officer does not have to see someone actually do the graffiti; he can arrest someone if they have graffiti implements and they are on public, school, or private property without permission. • Someone who has been vandalized by graffiti by a minor will not have to hire an attorney to sue for damages and administrative costs. The ordinance would allow a judgment against the parents of the minor for restitution during the criminal proceedings. • The ordinance makes it an infraction for the sale of spray paint and broad tipped markers to minors without parental consent. The group felt that prohibiting the sale to minors is a necessary tool to combat the problem. • ass MAY 6, 2003 — ADJOURNED MEETING Council Member Barnett had a problem with the broad definition used for graffiti implements that includes etching equipment and pressurized containers. That could even be hair spray and shaving cream. Mr. Montoya suggested new language and also said he would like to work with Jeff West and Kevin Eilmes to revise the language. He claimed the language used in this ordinance is similar to what is in the deadly weapons statute. Mr. Montoya continued with his description of the proposed ordinance: • The ordinance allows the forfeiture of property in the perpetrator's possession; based upon the drug seizure statute that protects the seizure of property from innocent people. • The ordinance permits community service in -lieu of fines and /or imprisonment; juveniles would be dealt with under Title 13. • The ordinance provides that restitution be made for damages. ➢ The Council Comments on the Proposed Ordinance Council members continued to express concerns with certain provisions in the ordinance. Mr. Montoya assured Council that all the issues would be addressed. Jeff West, Senior Assistant City Attorney, committed to work with Mr. Montoya and his group to clarify the ordinance. Further discussion brought out the following comments and suggestions: • The definition regarding possession of graffiti implements is too broad and it would be difficult to write an ordinance that covers all of the potential items that one could use for etching without becoming over -broad and covering people engaged in innocent activities. • The definition could include the most common etching tools currently used by the perpetrators. • The burden of proof section in the ordinance is unconstitutional; cannot shift the burden of proof to the defendant. • The RCW states that juveniles cannot be arrested for any crime that wouldn't be applied to adults; therefore, the possession of spray cans by juveniles may not be allowed. Ken Harper, consulting attorney for the City, stated that he was asked to review the ordinance relating to Constitutional and general civil concerns the proposed ordinance might raise. He has four concerns: • Vagueness or overbreadth. The ordinance is not intended to criminalize the innocent individual who merely possesses certain items in a certain area, but, on the other hand, he hears Mr. Montoya saying if you have certain implements you better not be near an underpass. • The section regarding parental liability may conflict with state law. It is one thing to allow someone to sue the parents of a child who vandalizes property with graffiti, and another thing to substitute the parent for the child in the penalty imposed. • The forfeiture clause states that certain property used or intended to be used in violation of this ordinance shall be forfeitable to the City, was written following 2 367 MAY 6, 2003 — ADJOURNED MEETING state law relating to forfeiture of personal property. The RCW references forfeiture of property gained during the commission of a crime. In the proposed ordinance, it is intended to act as a deterrent; there is no financial gain in the crime of graffiti. • Concerned about the abatement procedure — due process and entry without a warrant. Acting Police Chief Roy Willson, stated that the Police Department is in the middle. He applauds the public for wanting to do something about this. he understands the Constitutional concerns, but the Department needs to have direction and guidance. At the beginning there will be public education needed, but and when we start enforcing the ordinance some of these issues will go away. ➢ The Citizens Comment Mayor Place stated that there are some people in the audience who may have concerns about the restriction on the sale of spray paint. Brad Christenson, owner of Roys Hardware, said he had a problem with several things in this proposed ordinance. They have taken a voluntary stance to not sell spray paint to anyone under age 18. There are sections in the ordinance that would double the fines. He pointed out that part of 13.5.5 and 13.505 E could concern his business. As defined in the ordinance, he stated that about half the products in the store would be classified as etching equipment. He believes the ordinance still needs revisions. Gary Webster, President of the Greater Yakima Chamber of Commerce, agreed with Mr. Christensen's comments, which pretty much described the results of a survey conducted by the Chamber. For circumstances to be equitable for the businesses, these regulations should be extended to Selah, Union Gap, or the entire county. The action that can be taken under law with juveniles is limited and there is no room at the detention facility. He believes that more parties should be brought into this such as Union Gap and Selah. Mayor Place noted that someone from Sunnyside is here today. Manuel Arabel, 1217 Jerome, spoke in favor of passing a tough law, like California did to deter graffiti. We need the help now. Bill Palm, President, Yakima Temple Building Association, stated that the Masonic Temple is continually plagued with graffiti. He has heard concern about perpetrator and customer rights, but believes they have victim rights, too. They are having to clean it weekly. Council passed an ordinance making it the property owner's responsibility to cover the graffiti; and he would like to see an ordinance that says if these people get caught they will have to clean it. Council received additional suggestions from staff about possible revisions that could improve the ordinance. Council Member George suggested that staff obtain some information from Pasco and Walla Walla, who have passed successful graffiti abatement ordinances. Council Member Puccinelli said he is glad this is being addressed and would like to instruct our staff to meet with these people and look at other cities' legislation to figure out ways to accomplish it rather than dwelling on the problems in it. , 3 368 MAY 6, 2003 — ADJOURNED MEETING Robert May, 1400 block South 5th Avenue, claimed they are in the midst of the graffiti part of town and whatever the City comes up with will be good for the community. He referred to possible gang connection and said the gang problem also has to be addressed. Teresa Powers, Juvenile Court, stated that they are starting a community work program requiring kids to clean up their own graffiti in their facility and to clean up the community. They are working in the park now and would also like to become involved in solving the problem. Jim Beckett thanked Council for listening and reiterated that they tried to make changes in the ordinance to improve it. He volunteered the citizen group to help any way they can and questioned how Council would proceed from here. > Council Gives Staff Directions Mayor Place advised that the consensus from Council is to move forward and have the citizen meet with Jeff West, Ken Harper, and other city staff. If Council wants another study session, that can be scheduled. She asked that the ordinance be reviewed by the Police Department and Juvenile Court. If Council approves it, she would talk with Union Gap, Selah, and the County. (Council Member Mattson absent after 8:50 a.m.) SIMS MOVED AND PUCCINELLI SECONDED TO DIRECT OUR ATTORNEY AND STAFF TO MEET WITH THE CITIZEN GROUP TO REVISE THIS PROPOSED ORDINANCE AND RETURN TO COUNCIL FOR PASSAGE AND TO DEVELOP AN ACTION PLAN FOR EDUCATION, IMPLEMENTATION, AND MEASUREMENT OF RESULTS. The motion carried by unanimous voice vote; Buchanan and Mattson absent. Council Members Barnett and Puccinelli agreed to represent Council at the review session to be held with the citizens and staff. 3. ADJOURNMENT The meeting adjourned at 9:08 a.m. (? p fi ) y ( 7s4 4,, — 9 READ AND CERTIFIED ACCURATE BY: CL�x a 21 v " COUNCIL MEMBER DATE , COUNCIL MEMB ATTEST: gahe—t,,- ,%S. 83--642A) /7/ / CITY CLERK MARY PLACE, MAYOR An audio and video tape of this meeting are available in the City Clerk's Office 4