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.
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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
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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. ,
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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.
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READ AND CERTIFIED ACCURATE BY: CL�x a 21 v "
COUNCIL MEMBER DATE
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COUNCIL MEMB
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CITY CLERK MARY PLACE, MAYOR
An audio and video tape of this meeting are available in the City Clerk's Office
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