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HomeMy WebLinkAboutAGENDA REPORT 1993 1006 CC REG ITEM 11ATO: FROM: DATE: SUBJECT: Background AGENDA REPORT CITY OF MOORPARK Honorable City Council ITEM , .' 0O ^PARK. C ;- cry Coon- it N" of 0.3 ACTION: Apr ey 14;t Mary R. Lindley, Assistant to the City Manager October 1, 1993 (CC Meeting of October 6, 1993) Consider Graffiti Control and Abatement Ordinance On September 15, 1993, the City Council approved the content of a Graffiti Control and Abatement Ordinance pending final review and comment from the City Attorney prior to introducing it for first reading. Staff has worked with the City Attorney to incorporate the language changes requested by the Council. The changes made to the Ordinance are identified by text highlights and strikeouts. These changes reflect the language changes directed by the Council and cleanup language suggested by the City Attorney. The following is a summary of the changes: • Section 8.14.020 - At the request of Council, indelible marker pens have been included in the definition of graffiti implements. However, there was no specific direction on the width of the writing surface that would be restricted. Staff recommends 1/4 inch or greater. • Section 8.14.030 - To clarify direct and indirect costs that the City would be allowed to recover, the phrase "in accordance with State law" was added. • Section 8.14.050 - For consistency and clarification, the language regarding school teachers was removed from the definition of responsible adult and inserted in this section. • Section 8.14.080 - Language changes were made for clarification only. • Section 8.14.100 - Changes were made to this section to remain consistent with Council direction. • Section 8.14.110 - Changes were made to the wording of the required signage. As previously written, the sign was not a true statement of fact. The Ordinance allows responsible adults and school teachers to provide a minor with a graffiti implement. The Council may wish to provide clarification on what it believes should be the intent of the sign; i.e. , to inform about the restriction to sell to minors, or to provide broader information. • Section 8.14.140 - At Council's direction, nuisance abatement language, which allowed the City to abate graffiti without the property owner's consent, was removed from the Ordinance. In its place, the Ordinance now makes it unlawful for property owners to fail to remove graffiti. The City's internal policy would be to request that the property owner self- abate, allow the City to abate at property owners expense, or face prosecution. The determination for prosecution would be made by the City Council. • Section 8.14.150 - Pursuant to the suggestion of the City Attorney, language previously addressed in Section 8.14.140 is better addressed in this Section. • Section 8.14.160 - This Section was deleted at the suggestion of the City Attorney. Penalties for violation are addressed in sections 8.14.010 and 8.14.040. At the Council's request, staff has prepared a letter to be sent to the merchants who might be affected by this Ordinance informing them of its provisions. A draft copy of the Ordinance will also be included as well as the proposed date of its first reading (see attached letter). Recommendation Staff recommends that Council confirm the Graffiti Control and Abatement Ordinance prior to sending it out to merchants potentially affected by it and provide direction on the width of the writing surface for the indelible marker pens. ML:db Attachment ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADDING CHAPTER 8.14 PERTAINING TO THE CONTROL AND ABATEMENT OF GRAFFITI TO TITLE 8 OF THE MOORPARK MUNICIPAL CODE. THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 8.14 of Title 8 of the Moorpark Code is hereby added to read as follows: CHAPTER 8.14 - GRAFFITI 8.14.010 Purpose The purpose of this Chapter is to provide for the prompt abatement of graffiti from public and private properties in the City and to regulate the sale and possession of materials used in acts of graffiti. The City Council finds that graffiti is inconsistent with the City's aesthetic standards, and unless it is quickly removed from public and private properties, other properties soon become the target of graffiti. Graffiti on public and private properties encourages other acts of malicious vandalism, and depreciates the value of the adjacent and surrounding properties. Further, the City finds and determines that graffiti is obnoxious and a public nuisance. The existence of graffiti tends to breed community discontentment and criminal activity. The unlawful placement of graffiti on public and private properties is often committed by persons under the age of Alnh*o-w (18) years of age using aerosol and pressurized containers of paint, broad - tipped markers and pens, and glass etching tools. The public's interest, convenience and necessity require the adoption and implementation of the provisions of this Chapter. 8.14.020 Definitions Unless the context otherwise requires, the definitions in this section shall govern the construction of this Chapter. "Aerosol paint container" means any aerosol or pressurized container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint, or other substance capable of defacing property. "Glass etching tool" means any etching tool or glass cutter. "Graffiti" means any unauthorized inscription, word, figure, character or design that is marked, etched, scratched, drawn, or painted. "Graffiti Implement" means an aerosol paint container, ; or a glass etching tool. ..................... ............................. ............................... ............................... ............................... "Minor" means a person under 18 years of age. "Responsible Adult" means a parent or legal guardian of a minor er ssieel teaeher - af a faiTer. 8.14.030 Unlawful to Apply Graffiti It shall be unlawful for any person to apply graffiti to any trees or structures including, but not limited to, buildings, walls, fences, poles, signs, sidewalks, and other personal property or paved surfaces located within the City. Any individual who is found guilty of violating this section shall pay restitution to the property owner or other person who is entitled to possession of the property upon which the graffiti was placed, in addition to other authorized penalties. If the violator is a minor, the minor's responsible adult shall be responsible for payment of such restitution in the discretion of the court in a criminal proceeding involving the minor. "Restitution" as used herein shall mean the recovery3 ;'A BtC+Cr#?t�t w� 1W< of all damages resulting from the placement of graffiti contrary to the provisions of this Chapter, including, but not limited to, direct and indirect costs of the removal thereof. 8.14.040 Civil Debt Any person who defaces private or public property with graffiti shall be responsible to the property owner or person who is entitled to possession of the property for all damages occurring as a result of the placement of said graffiti, including, but not limited to, direct and indirect costs for the removal thereof. If graffiti is removed by the City, all costs of such removal, direct and indirect, shall be recoverable from the person who caused the graffiti. The obligations imposed pursuant to this Section shall be enforceable as a civil debt. 8.14.050 Furnishing Graffiti Implement to Minors Prohibited It shall be unlawful for any person, other than a responsible adult, ox 00 -h pupe� t�r�st��s» to knowingly sell, ekcharige, give, loan or in any way furnish to any minor a graffiti implement. I/ �, 8.14.060 Possession of Graffiti Implement by Minors It shall be unlawful for any minor to have in his or her possession a graffiti implement while upon public or private property without the consent of the owner, lessee or operator of such property. 8.14.070 Parental Civil Liability Any act of willful misconduct of a minor which results in the placement of graffiti shall be imputed to the minor's responsible adult for all purposes of civil damages, including all attorneys' fees and court costs incurred in connection with the civil prosecution of any such claim for damages. The responsible adult shall be jointly and severally liable with the minor for all damage, not to exceed Ten Thousand Dollars ($10,000) for each chargeable act of the minor. This section in no way limits or narrows the liability of a responsible adult for acts of a minor pursuant to Civil Code Section 1714.1, Government Code Section 53069.5, Pe a 6�c ion 640.5 or any other applicable provision of law. 8.14.080 Possession of Graffiti Implements in Pub1 c Pisi� ll t t {IlJ(A`J: i It shall be unlawful for any person to have in his or her possession a graffiti implement while in any public street, park, playground, swimming pool, recreational facility or other public place. The provision of this Section shall not apply to an authorized emplovee of the City, a ..bli: - autherised empleyee o f a private utility - eempany if sueh emp levee is perferming— e€€ieial dies that requ = the use of a graffiti implement. 8.14.090 School Exception for Graffiti Implements Notwithstanding any other provision of this Chapter, it shall be lawful for any person to possess a graffiti implement while the person is attending, or traveling to or from a school at which such person is enrolled, if the person is participating in a class at such school, which has, as a class requirement, the need to use such a graffiti implement. 8.14.100 Restriction on Storage of Graffiti Implement Every person who owns, conducts, operates or manages a retail commercial establishment selling aeresel eentainer- 00 � i C3.exaint shall store or cause such aei-esel eentaine 9* raffzt 1p43 to be stored in an area viewable by, but not accessible to the public in the regular course of business without employee assistance, pending legal sale of such aeresel eentainer 8.14.110 Sign Required Any person who owns, conducts, operates or manages a retail commercial establishment which offers for sale or sells graffiti implement shall display at the location of retail sale of such graffiti implements a sign, in letters at least three - eighths (3/8) of an inch high, clearly visible and legible to customers which states as follows: ........................... ............................... "IT IS UNLAWFUL FOR "NY PERSON -9 SELL OR GIVE TO ANY INDIVIDUA*t =ER 'Y'HE AGE OF EIGHTEEN YEARS ANY AEROSOL PAINT CONTAINERr,j} OR GLASS ETCHING TOOL." 8.14.120 Reward The City Council may authorize the offer of rewards for information leading to the arrest and conviction of any person for a violation of any provision of this Chapter. The amount of any such reward and the procedures for claiming said reward shall be established, from time to time, by the City Council. 8.14.130 Nuisance It is hereby declared that the existence of graffiti on any building, structure, fence or landscaping is a public nuisance, and shall be abated as such as provided in this Code. 8.14.140 This Gity - Geuneil has determined that the ef — buildings, €e3iGe, eentincced emis enee graffiti tvn-- the G-ityis structure, }sasee, —er -' -- --- --- h- -r ---g within ebnemieus enee the- and - -a-- ems t=- the effeet of gang well milaeement entbuiidings e€-- M ere - gra€f- � -the €enees sage leeatien dseapinger as ether 4ur€aees The , struetures , , -la is . tire- prerapt €eratlen refteval of graffiti neeessary it to prevent rem lawful fer the— of graffiti. Aeeerdingl y, shal-I te fail ewners te abate acrd /er persens their in pessessi-en of t preperty nrcy Manager finds that graffiti en has been preperty. Where .tel. t buildings,s graffiti fenees pl, ea ea ruetures, ewner, -er -ether - ,landseaping te-- and theree€, the -eensent -ogre person entitled - gessess-ien eannez, f- fer the by the Gity its any reasen, be ebtained entry ef agents er landseaping ether entitled —te- possession e€ — - uilding, than er strueture net —less to to Hem=fired te— �tegraffiti in the p�e�er. y abatement —e preperty, Nt-i-ee. Gity Manager lrgive the e- the —ewner fenee, er landseaping ether entitled —te- possession e€ — - uilding, than er strueture net —less to seve the the either Belf abate — — graffiti en preperty, prev €aee-- the te expense, er i the i ^ preseeetlen.tha-t, ; v unless t-.he per — graff-Ai: i ed of time wh eh et - - --- ---mow ---y_� --- - --_ - in e �.teB !d within - - -- -- -- - _ ---- - -- the Gity ---- r -- - --- -- - - ---- tl�TC Bet —€erth said net-iee,, will enter upeT1 the Tie— tee— refaeval ef graffiti. that if set - the is shall time alsa eentain a statement graffiti net by the Eity its that ineurred therein er benssessed— agent all eeSt the against leeated, in the time property upen a whieh said in this nuisanee�s Gede.- manner set —€erth Netlee. The net- iee— shall be -given by person '• 9--. . eP en the person te ti'c"-- rnetif ied , —er by first e-l"s^ mail, "caressed to Z Z- M-Z- WO 8.14.150 Expenditure of Public Funds or privately owned real property within the City. discretion, such removal shall be performed by the a finding by the public or privately .................. . City M *ri g*e* r that the graffiti owned permanent structures located on public or privately owned real property within the City and after securing the consent of the owner or other person entitled to possession of the property pursuant —te 6eet- ien 8.14.140. At the City's City only after is located on Aialac=en e€- a#r} ear -ef this Ghapter, is a m- s=eneaner and shall be punishable by-- a—fine net --te emeeed ire Theusand Bellars r , r SECTION 2. Severability. If any section, subsection, clause or phrase (hereinafter collectively referred to as provision) of this ordinance or the application thereof to any person or circumstance is held invalid, it is the intent of the City Council in adopting this ordinance that such invalidity shall not affect the remaining provisions or applications which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. SECTION 3. That this ordinance shall take effect 30 days after final passage and adoption. SECTION 4. The City Clerk shall certify to the passage of this ordinance and shall cause the same to published as required by law. PASSED AND ADOPTED this day of September, 1993. Mayor of the City of Moorpark ATTEST: City Clerk MOORPARK 799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864 September 30, 1993 Dear Merchant: As you may already know, the Moorpark City Council recently considered the adoption of a Graffiti Control and Abatement Ordinance. Pending review and comments by the City Attorney, the Council voted to approve the Ordinance. The Ordinance will be presented for its first reading at the next City Council meeting scheduled for , 1993, at 7:00 p.m. in the Council Chamber. The Council first considered the Ordinance at the request of the Ventura Council of Governments (VCOG) as a Countywide effort to eradicate graffiti. The members of VCOG believe that if Ventura County and west Los Angeles County jurisdictions adopt similar graffiti ordinances, which restrict the sale and possession of graffiti implements, they may significantly deter incidents of graffiti. The City of Moorpark spends many valuable man -hours and financial resources to abate graffiti and apprehend offenders. To that end, the attached Graffiti Ordinance was developed. Of specific importance to you as a merchant are the sections of the Ordinance that address the sale and display of graffiti implements. As proposed, graffiti implements would be defined as "an aerosol paint container, indelible marker pen, or a glass etching tool." While under State law it is unlawful for anyone to sell or furnish an aerosol container larger than six ounces to a minor, the City's proposed Ordinance goes further by making it unlawful for anyone to sell or furnish a graffiti implement to a minor. As proposed, an indelible marker pen shall mean any indelible marker, felt tip marker or similar implement containing non -water soluble fluid and has a flat, pointed or angled writing surface of 1/4 inch or greater. In addition, the City's proposed Ordinance requires merchants to store and /or display graffiti implements so that they are not accessible to the public without employee assistance. As proposed, the Ordinance would also require merchants selling graffiti implements to post a sign that states, "It is unlawful for this business to sell or give to any individual under the age of eighteen years any aerosol paint container, indelible marker pen, or glass etching tool unless accompanied by a responsible adult." PAUL W. LAWRASON JR. SCOTT MONTGOMERY PATRICK HUNTER BERNARDO M. PEREZ JOHN E. WOZNIAK Mayor Mayor Pro Tem Counalmember Counalmember Counalmember Prwod on Aecyded P*w The City looks forward to working cooperatively with you and other merchants to put an end to graffiti. I hope you will take time to review the attached proposed Ordinance. The City Council and staff welcome your comments. If you have any questions or concerns, I can be reached at City Hall, 529 -6864, extension 217. Sincerely, Mary K. Lindley Assistant to the City Manager MKL:db Attachment: Proposed Graffiti Ordinance c: \wpwin \atcm \graffiti Circle K 256 W. Los Angeles Ave. Moorpark, CA 93021 Copycat Printing 530 New Los Angeles #1 -G Moorpark, CA 93021 Hughes Market 101 W. Los Angeles Ave. Moorpark, CA 93021 Mail -It -Quick 484 E. Los Angeles #108 Moorpark, CA 93021 Mayflower Market 105 E. High Street Moorpark, CA 93021 Monika's General Store 31 Poindexter Moorpark, CA 93021 Moorpark Pharmacy 484 Los Angeles Ave. Moorpark, CA 93021 The Creamery 255 E. High Street Moorpark, CA 93021 Barakats Market 411 High Street Moorpark, CA 93021 Thrifty's P.O. Box 92333 Moorpark, CA 93020 Whitaker Hardware 179 E. High Street Moorpark, CA 93021 c: \wpwin \labels.deb \graffiti RECEIVED • AUG 2 4 1993 LAW OFFICES City) 01 iY1UYPIU� BZTI3KE, WILLIAMS & SOHENSEN VENTURA COUNTY OFFICE 611 WEST SIXTH STREET, SUITE 2500 BURKE,WILLIAMS,SORENSEN 6 GAAR 2310 PONDEROSA DRIVE LOS ANGELES, CALIFORNIA 90017 LIGHTON PLAZA SUITE 1 7300 COLLEGE BOULEVARD CAMARILLO,CALIFORNIA 93010 (213) 236-0600 SUITE 220 (BOS)907-3466 OVERLAND PARK, KANSAS 66210 (913)339-6200 TELECOPIER: (213) 236-2700 ORANGE COUNTY OFFICE W RITE RCS DIRECT DIAL 3200 BRISTOL STREET SITE 640 213-236-2721 COSTA MESA,CALIFORNIA 92626 (7141 545-5559 OUR FILE NO. 01359-001 August 23 , 1993 Mary K. Lindley Assistant to the City Manager City of Moorpark - 799 Moorpark Avenue Moorpark, California 93021 Re: Graffiti Ordinance Dear Mary: By letter dated August 9, 1993 , you have requested review of the above-described ordinance. Please find enclosed a copy of the ordinance on which I have corrected typographical errors and have made other revisions for the sake of internal consistency as well as consistency with the remainder of Title 8. My substantive comments regarding the ordinance are noted below. As a preface to those comments, I do want to call your attention to the doctrine of preemption since, as your letter recognizes, much of the ordinance is already contained in state codes. A. Preemption. Local legislation that the courts find has been preempted by state law is void and 4ence is unenforceable. Preemption exists if the local legislation duplicates state law, contradicts state law (e.g. , is more or less restrictive than a state statute) or enters an area fully occupied by state law, either expressly (i.e. , the statute contains a Legislative declaration that by the enactment of the statute the state intends to preempt local legislation) or by implication (i.e. , the subject matter (i) is so fully and completely covered by state law as to clearly indicate that it has become a matter of LAX:66303.2 Mary K. Lindley August 23, 1993 Page 2 i exclusive state concern; (ii) has been partially covered by a statute that is couched in terms that indicate clearly that the state will not tolerate further or additional local legislation; or (iii) has been partially covered by a statute and the subject is of such a nature that the adverse effect of local legislation on transient citizens outweighs the possible benefits to the locality. (Sherwin-Williams v. City of Los Angeles (1993) 16 Cal. Rptr. 2d 215, 217-218 . ) Even when the state has not preempted local regulation, the City should consider whether existing state law adequately addresses its concern. The District Attorney, at no direct expense to the City, prosecutes the vi-olati-on of state statutes; he does not prosecute the violation of municipal ordinances. The cost of taking just one violator of this proposed ordinance to trial would almost surely cost the City many times more than the fines that it could expect to collect in a year from violators who plead guilty. B. The Ordinance. 1. Definitions. I call your attention to the fact that, at least in the experience of the City of Los Angeles, a broad-tipped marker pen (one exceeding four millimeters in diameter) is just as destructive a "graffiti implement" as aerosol paint containers. (Sherwin-Williams v. City of Los Angeles supra, at 220. ) 2 . Unlawful to Apply Graffiti. The first paragraph of this section contradicts state law. Penal Code sections 594, 640. 5 and 640. 6, collectively, make it unlawful to affix graffiti to any form of real property, not just structures, as well as to any form of personal property (e.g. , vehicles) , not just trees. 1 The second paragraph also contradicts state law. Penal Code sections 594, 640. 5 and 640. 6 limit restitution to clean-up of the damage and then only at the option of the victim. Aside from the preemption issue, the restitution paragraph would be subject to challenge for being overly broad -- it makes teachers responsible per se for the actions of their minor students. (See Definitions section. ) LAX:66303.2 Mary K. Lindley August 23, 1993 Page 3 3 . Civil Debt. This section enters an area that, at least by implication, appears to be fully occupied by state law. Civil Code section 1714 imposes responsibility for willful and negligent acts and Civil Code section 3281 et sea. governs the extent to which damages may be recovered. I also call your attention to Government Code section 53069 . 6. This section imposes a duty upon the City to "take all practical and reasonable steps to recover civil damages for the negligent, willful, or unlawful damaging" of its property, including "appropriate legal action". 4 . Furnishing to Minors Prohibited. This section, in Ce some ways duplicative of, and in other ways contrary 'to, Penal Code Section 594 . 1 (a) , is not preempted. Penal Code section 5 .5 expressly renders state legislation regarding the sale of aerosol paint containers and "other liquid substances capable of defacing property" non-preemptive. Although not void, this section might be subject to a successful challenge on the basis of overbreadth or unreasonable- ness. As written, selling to a minor is illegal per se, even though the minor may have produced evidence, albeit forged, of majority. 5. Possession by Minors. This section, at least in part, contradicts Penal Code section 594 . 1 (e) . That subdivision, unlike Penal Code section 594 . 1 (a) , addresses the "possession" rather than the "sale" of graffiti implements, and so it would only be deemed non-preemptive if the courts were willing to give an expansive interpretation to the word "sale" as used in Penal Code section 594 . 5. 6. Parental Civil Liability. This section is essentially duplicative of Civil Code section 1714 . 1. Aside from the matter of preemption, this section would be subject to challenge for being overly broad -- it makes school teachers liable per se for the actions of their minor students. (See Definitions section. ) It also confuses civil liability with criminal activity by its use of the term "chargeable action" instead of "tort" . LAX:66303.2 0 Mary K. Lindley August 23, 1993 Page 4 7. Possession of Graffiti Implements in Public Places. This section, in part, duplicates and in part contra- dicts Penal Code section 594 . 1(d) . That subdivision, unlike Penal Code section 594 . 1 (a) , addresses the "carrying" rather than the "sale" of graffiti implements, and so it would only be deemed non-preemptive if the courts were willing to give an expansive interpretation to the word "sale" as used in Penal Code section 594. 5. Aside from the matter of preemption, the section could be subject to challenge for being overly broad -- it does not exempt employees of private utility companies in the performance of their official duties; they arguably have as much of a need to mark property with graffiti implements as do City employees or agents. 8 . Restriction On Sale of Graffiti Implement. A provision similar to this section has been upheld by the Califor- nia Supreme Court in Sherwin-Williams v. City of Los Angeles, supra, on the basis that it regulates the non-preemptive subject matter of the sale of graffiti implements. This section does not, however, exactly duplicate the Los Angeles regulation. Whenever a court, particularly the Supreme Court, has upheld an ordinance, it is prudent to adopt that ordinance verbatim, making only changes that are necessary to conform to the City's termino- logy. (For your information, I am enclosing a copy of the Los Angeles regulation. ) 9. Sign Required. This section is not preempted by any subdivision of Penal Code section 594 . 1, since it pertains to the sale of graffiti implements. However, the text that is required to be displayed on the sign is misleading; there is nothing in this ordinance that makes it illegal to sell to a minor only when the minor is not accompanied by a responsible adult. (See Furnishing To Minors Prohibited above. ) 10. Nuisance/Summary Nuisance Abatement. Abating graffiti on private property without the consent of the owner or person in possession will almost surely invite litigation, in particular because the paint used to remove graffiti seldom matches the existing paint. With the jurisdictional limit of small claims courts set at $5, 000. 00, it would be a simple matter for a property owner to sue the City to recover the costs of repainting the entire building. LAX:66303.2 Mary K. Lindley August 23, 1993 Page 5 In light of the liability to which the Summary Nuisance Abatement section exposes the City, you may want to consider making it unlawful for the owners/persons in possession to fail to abate graffiti on their property. The owner/person would then have the option of performing self-abatement (or consenting to pro-offered City abatement) or of being prosecuted. Such an approach would also make unnecessary the Nuisance section. (See M.M.C. § 1. 12 . 070. ) 11. Expenditure of Public Funds. The second paragraph contradicts state law. Government Code section 53069. 3 enables the City to adopt an ordinance authorizing expenditure of City funds for graffiti removal, but the funds can only be used to remove graffiti from "permanent structures" and the City must find that the graffiti is obnoxious. If you have any questions regarding my comments, please do not hesitate to contact me. Very truly yours, CH gYL . KANE CI ORNEY, MOORPARK; and BURKE, WILLIAMS & SORENSEN CJK:hsk cc: Steven Kueny, City Manager r' LAX:66303.2