Loading...
HomeMy WebLinkAbout1991/06/18 Item 10 COUNCIL AGENDA STATEMENT Item IlJ Ordinance :1.4/,,;, Amending sections 9.20.020, 9.20.040, 9.20.045, 9.20.050, and adding section 9.20.035 to chapter 9.20 property defacement of the Chula vista Municipal Code first reading. SUBMI'l"l'ED BY: Director of Public WorksQ~L REVIEWED BY: City Manager8 J.fJ/ (4/5ths Vote: Yes_No_X..J At the May 28, 1991, City Council meeting Council requested that staff return with an ordinance requiring property owners to remove graffiti within a period of 7 to 10 days. At that meeting, staff informed Council that the Graffiti Control Subcommittee was already considering such an ordinance and would return with an ordinance on graffiti control that addressed removal of graffiti by property owners and other items. Meeting Date 6/18/91 ITEK TITLE: RECOMMENDATION: That Council adopt the ordinance amending section 9.20 of the Municipal Code. BOARDS/COMMISSIONS RECOMMENDATION: The Graffiti Control Subcommittee consisting of members from utilities, developers, Chamber of Commerce, school districts, and city staff have all reviewed the attached ordinance and recommend its adoption. DISCUSSION: The Graffiti Control SUbcommittee, which has been meeting since May 2, 1991, had considered various amendments to the City Code in regards to property defacement. On April 18, 1991 the City Attorney submitted and Council adopted an ordinance which amended section 9.20 of the code by: defining aerosol containers; included felt-tip markers as prohibited items for minors to possess; and prohibited the sale or furnishing of aerosol spray cans or felt-tip pens to minors. In addition it changed the violation from an infraction to a misdemeanor at the discretion of the City Attorney. As indicated above, the subcommittee at the recommendation of the city Attorney decided that other amendments were also called for. These are enumerated briefly below. 1. Require property owners to remove graffiti with seven days. 2. Require that establishments displaying and selling aerosol paint containers and felt-tip markers place these in an area which is not normally accessible to customers during working hours. 3. Require that all property owners (including homeowners) keep aerosol spray containers and felt-tip markers in a securely enclosed room which is not normally accessible to other people. /0 -I Page 2, Item Meeting Date 6/18/91 However, it was further determined by the subcommittee that this would not be enforced except if it had been found that violation has contributed to an act of vandalism. 4. Indicated that parents have civil responsibility for damages of their children if they knowingly permit them to possess an aerosol paint container of felt-tip marker. 5. Finds that any person who displays or stores aerosol spray containers, felt-tip markers in violation of provisions of the ordinance shall be civilly liable for all costs up to $1,500, which will permit the filing claims in small claims court. The subcommittee discussed all of these proposed changes to the ordinance at length. The owner of Cornell's Office Supplies represented the Chamber and contacted other such business owners and gave their feedback on the appropriateness of requiring the more stringent display and sale requirements. As a whole, the subcommittee agreed that the cost to society caused by persons applying graffiti to utility boxes, concrete walls, etc. needs be taken into consideration by the individuals selling these items and, therefore, it is warranted that the City require a secure display. The item that caused the most discussion by the subcommittee was the section that requires everyone including the city and homeowners to keep felt-tip markers and aerosol cans in an enclosed secure room. Wording was worked out that would take into account the fact that the budget manager, for example, may have felt-tip markers on her desk or in her office and may leave her office from time to time in the conduct of the business day, but that her office is still in a building which will be locked at the end of the business day. In addition it was determined that the provision that enforcement would not take place except when it was found that violation of this section of the code had led to graffiti would go a long way toward mitigating the intrusion of local government into people's private lives. All of these issues are indicated in the marked up ordinance which is attached for Council's consideration. The above discussion has dealt with the ordinance, in general, as it applies to citizens and businesses in the community. This section will deal briefly with the ordinance as it applies to the ci ty, itself, as a municipal corporation. The requirement that all graffiti be removed from property within seven days applies to the city as well as to utility companies, private individuals, and businesses. The City has 5 1/2 linear miles of lined concrete drainage channels. Each drainage channel has two sides which makes up about 11 miles and each side is anywhere from 4' - 10' high. As Council can see, this is a large area from which staff will be responsible for insuring that graffiti is removed. In addition, the city has over 100 traffic signal intersections, each I()-~ Page 3, Item_ Meeting Date 6/18/91 of which has a traffic signal controller box, may have a power pedestal and has four standards which may be marked with graffiti. The city also has over 4,000 street light standards, some of which have been marked with graffiti. CUrrently, the city is already removing graffiti from municipal buildings, park restrooms, park equipment etc. It had not, however, been removing all graffiti on controller boxes, drainage channels etc. within seven days but had been responding as soon as possible with the staff that we have. Requirement for removal within seven days will require the addition of two maintenance workers to the traffic paint operations section at a cost of about $94,000 the first year and an on-going cost of about $75,000 per year. This includes equipment such as a truck, sprayer, paint, graffiti remover, etc. This will be discussed in further detail in the Supplemental Budget Report on Graffiti Control which you also received for today's meeting. It should be noted that the City of National city, which is much smaller than Chula Vista, had estimated that they would spend about $96,000 per year for graffiti removal but most likely will spend about $150,000 for a graffiti removal contract. The city of Southgate, from which the City Attorney came to us, spends over $170,000 per year for graffiti removal. FISCAL IMPACT: As indicated above, the first year's cost of the ordinance to the City will be about $96,000 and will be further discussed in the Supplemental Budget Report on Graffiti Control. DB:mp (COAGAMGC) 10-3 ORDINANCE NO.~ AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING SECTIONS 9.20.020, 9.20.040, 9.20.045, 9.20.050, AND ADDING SECTION 9.20.035 TO CHAPTER 9.20, PROPERTY DEFACEMENT The City Council of the city of Chula Vista does ordain as follows: SECTION I: That sections 9.20.020, 9.20.040, 9.20.045 and 9.20.050 of Chapter 9.20 are amended to read as follows: 9.20.020 Definitions. A. "Deface", as used in this Chapter, means the intentional altering by physical, mechanical or chemical means of the physical shape, dimension, contour or appearance of property. B. "Aerosol paint container" means any aerosol container, regardless of the material from which it made, which is adapted or made for the purpose of spraying paint or other substance capable of defacing property. (Ord. , Sec. 1, 1991) C. "Felt tip marker" means any indelible marker or similar implement with a tip which, at its broadest ~eiftt width is greater than one-eighth (ljSth) inch, containing an ink that is not water-soluble. (Ord. , Sec. 1, 1991) 9.20.040 Prohibition of sale, possession, display for purposes of sale, and storage of aerosol paint containers. A. Sale or Furnishing to Minors. It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause or permit to be sold, exchanged, given, loaned, or otherwise furnished, any aerosol paint container to any person under the age of eighteen years without the consent of the parent or other lawfully designated custodian of the person, which consent shall be given in person. B. Possession. It shall be unlawful for any person under the age of eighteen years to have in his or her grafS.wp June 11, 1991 Proposed Additions to Grafitti Ordinance Page 1 )1) -1 possession any aerosol paint container while upon public property or upon private property without the consent of the owner of such private property whose consent shall be as to the person's presence while in the possession with a aerosol paint container. C. Displav for the Purposes of Sale. No person. firm or entity enaaaed in a commercial enterprise ("Seller") shall display any aerosol paint container for sale. trade or exchanae. nor shall store any aerosol paint container pendina display for sale or pendina sale. except in an area from which the public shall be secure Iv precluded without employee assistance. Two such acceptable methods for displavina aerosol paint containers for sale shall be bv containment in (1) a completelY enclosed cabinet or other storaae device which shall be permanent Iv affixed to a buildina or buildina structure. and which shall. at all times except durina access bv authorized representatives. remain securelY locked: or in an enclosed area behind a sales or service counter from which the public is precluded from entry. D. Wronaful Storaae of Aerosol Paint containers. No person shall store any aerosol paint container except in either (1) a completelY enclosed room which shall. at all times except durina access or substantial occupancy bY the owner or an authorized adult representative of the owner. remain securelY locked: or (2) in a completely enclosed cabinet or other storaae device which shall be permanently affixed to a buildina or buildina structure. and which. shall. at all times except durina access bY the owner or an authorized adult representative of the owner. remain securelY locked. For the purposes of this section. an owner or authorized representative of the owner. shall be deemed to have substantial occupancy of a room even durina short periods of absence if the room is part of a laraer structure which is occupied by the owner. 1. Enforcement Policy on Wronaful Storaae Offenses. It shall be the intention of the city to enforce this provision aaainst the "Wronaful Storaae of Aerosol Paint Containers" onlY when its violation has caused or contributed to an act of vandalism by a third party. 9.20.045. Prohibition of sale, possession and display of felt tip markers. A. Sale or Furnishing To Minors. It shall be unlawful grafB.wp June 11, 1991 Proposed Additions to Grafitti Ordinance Page 2 10 -..5 for any person, other than a parent or other legal guardian, to sell, exchange, give, loan, or other furnish, or cause or permit to be sold, exchanged, given, loaned, or otherwise furnished, any felt tip marker to any person under the age of eighteen years without the consent of the parent or other lawfully designated custodian of the person, which consent shall be given in person. B. Possession by Minors. It shall be unlawful for any person under the age of eighteen years to have in his or her possession any felt tip marker while upon public property or upon private property without the consent of the owner of such private property, except while attending, or travelling to or from a school at which the person is enrolled, if the person is participating in a class at said school which has, as a written requirement of said class, the need to use felt tip markers. C. Disolay for the Purooses of Sale. No oerson. firm or entity enqaqed in a commercial enterorise ("Seller") shall disolav any felt tio marker for sale. trade or exchanae. nor shall store any felt tio marker oendina disolav for sale or oendina sale. exceot in an area from which the oublic shall be securely orecluded without emoloyee assistance. One such acceotable method for disolayina felt tio markers for sale shall be in a comoletely enclosed cabinet or other storaae device which shall be oermanentlY affixed to a buildinq or buildina structure. and which shall. at all times exceot durinq access bv authorized reoresentatives. remain securely locked. D. Wronaful Storaqe of Felt Tio Markers. No oerson shall store any felt tio marker exceot in either (1) a comoletelY enclosed room which shall. at all times exceot durina access or substantial occuoancy by the owner or an authorized adult reoresentative of the owner. remain securelY locked: or (2) in a comoletelY enclosed cabinet or other storaqe device which shall be oermanently affixed to a buildina or buildina structure. and which shall. at all times exceot durina access bY the owner or an authorized adult reoresentative of the owner. remain securely locked. For the ourooses of this section. an owner or authorized reoresentative of the owner. shall be deemed to have substantial occuoancy of a room even durina short oeriods of absence if the room is Dart of a laraer structure which is occuoied by the owner. graf8.wp June 11, 1991 Proposed Additions to Grafitti Ordinance Page 3 I~ - (0 Enforcement Policy on Wronqful Storaqe Offenses. It shall be the intention of the city to enforce this provision aqainst the "Wronqful storaqe of Felt Tip Markers" onlY when its violation has caused or contributed to an act of vandalism by a third party. 9.20.050. Penalties for violation of chapter. A. Criminal Penalties. Any and all violations of this chapter shall be punishable either as an infraction or misdemeanor, at the discretion of the City Attorney. It is further understood that financial parental responsibility for any acts of vandalism shall be strictly enforced. B. Parental civil Responsibility for Damaqes. Any parent or other leqal quardian who consents to. permits. or otherwise knowinqlY allows her or his child under the aqe of eiqhteen to possess an aerosol paint container or a felt tip marker shall be personallY liable for any and all costs to any person incurred bY any party in connection with the repair of any property caused bY said child. and for all attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damaqes. c. civil Responsibility for Damaqes Wronqful Display or Storaqe. Any person who displays or stores an aerosol spray container or felt tip marker in violation of the provisions of this chapter shall be personally liable for any and all costs incurred bY any party in connection with the repair of any property caused bY a minor who shall use such aerosol spray container or felt tip marker in violation of the provisions of California Penal Code section 594. and for all attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damaqes. not to exceed $1.500.00. SECTION II: That Section 9.20.035 is added to Chapter 9.20 of the Chula vista Municipal Code to read as follows: 9.20.035 Permittinq Graffiti to Remain It is unlawful for any person who is the owner or who has primary responsibility for control of property or who has primary responsibility for the repair or maintenance of property ("Responsible Party") to permit property which is defaced with qraffiti to remain so defaced for a period of seven (7) days after notice of same. unless said person shall demonstrate bY a graf8.wp June 11, 1991 Proposed Additions to Grafitti Ordinance Page 4 If; - 7 DreDonderance of evidence that thev do not have the financial or Dhvsical abilitv to remove the defacina araffiti. or unless it can be demonstrated that the ResDonsible Partv has an active Droaram for the removal of araffiti and has scheduled the removal of the araffiti as Dart of that Droaram. . SECTION III: This ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. Graf9.wp orm by Presented by ~ David Byers, Director of Public Works ity graf8.wp June 11, 1991 Proposed Additions to Grafitti Ordinance Page 5 Jo-cr CITY ATTORNEY'S BACKGROUND DRAFT Current Text "On the Books" is in regular font. Proposed Text is in -Shadowed- Font Additions are Underlined. Deletions are in Eltrilte Out. Current and Proposed Graffiti ordinance 9.20.010. Purpose and intent. It is the purpose and intent of the City Council of the City, through the adoption of this chapter, to provide additional enforcement tools to protect public and private property from acts of vandalism and defacement; especially, but not limited to, graffiti on privately and publicly owned walls, which are inimical and destructive of the rights and values of private property owners as well as the total community. It is further the intent of the City Council, through the adoption of this notice upon all of those who callously disregard the property rights of others, that the law enforcement agencies of the city, both the police department and the prosecutor's office, will strictly enforce the law and severely prosecute those persons engaging in the defacement of public and private properties. 9.20.020 Definitions. A. altering physical "Deface", as used in this Chapter, means the intentional by physical, mechanical or chemical means of the shape, dimension, contour or appearance of property. B. "Aerosol paint container" means any aerosol container, regardless of the material from which it made, which is adapted or made for the purpose of spraying paint or other substance capable of defacing property.' (Ord. ____, Sec. 1, 1991) C. "Felt tip marker" means any indelible marker or similar implement with a tip which, at its broadest ~eiHt width is greater than one-eighth (1/8th)2 inch, containing an ink that is not water-soluble. (Ord. , Sec. 1, 1991) 9.20.030 Prohibition of defacement. It is unlawful for any person to intentionally deface, 1. Adapted from R & T Code Section 7287. 2. Note that National City's ordinance uses "four millimeters". graf8.wp June 3, 1991 Proposed Additions to Grafitti Ordinance Page 1 It; -9 alter, change, destroy, mutilate, remove, take down or take away any public property or any private property without the consent of the owner of such property or the public agency charged with the trusteeship of property. A mistake as to the private property owner's identity or lack or knowledge that such property is held by a public agency shall not be a defense to a violation of this section. 9.20.035 Peraitting Graffiti to Remain It is unlawful for any person who is the owner or who has priaary responsibility for control of property or who has primary responsibility for the repair or aaintenance of property (-ResDOnsible Party-) to perait property which is defaced with graffiti to reaain so defaced for a period of S seven (7) days after notice of same, unless said person shall demonstrate by a preponderance of evidence that they do not have the financial or Dhysical ability to remove the defacing graffiti. or unless it can be demonstrated that the ResDonsible Party has an active DrOQram for the removal of Graffiti and has scheduled the removal of the Graffiti as Dart of that DrOGram. 9.20.040 Prohibition of sale, possession, display for purposes of sale, and storage of aerosol paint containers. A. Sale or Furnishing to Minors. It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause or permit to be sold, exchanged, given, loaned, or otherwise furnished,3 any aerosol paint container to any person under the age of eighteen years without the consent of the parent or other lawfully designated custodian of the person, which consent shall be given in person. B. Possession. It shall be unlawful for any person under the age of eighteen years to have in his or her possession any aerosol paint container while upon public property or upon private property without the consent of the owner of such private property whose consent shall be as to the person's presence while in the possession with a aerosol paint container, 4 C. Display for the Purposes of Sale. No person, firll or entity engaged in a commercial enterprise (-Seller-) shall display any aerosol paint container for sale, trade or exchange, 3. This "furnish" language is offered to create a parallel with the felt tip marker language. 4. This language is proposed for removal as inclusive of the universe of possibilities. graf8.wp June 3, 1991 Proposed Additions to Grafitti Ordinance Page 2 10 -Ii) nor shall store any aerosol paint container pending display for sale or pulding sale, except in an area from which the oublic ahall be securelY orecluded without emoloyee assistance. Two such acceDtable aethods for disDlayina aerosol oaint containers for sale shall be by containment in (1) ~ a c01llpletely enclosed cabinet' or other storage device which shall be permanently affixed to a building or building structure, and which ahall, at all tiaea except during access by authorized representatives, reaain securely locked: or in an enclosed area behind a sales or service counter frOll which the Dublic is Drecluded from entry. 6 D. lIrongful storage of Aerosol Paint Containers. 7 No person shall store any aerosol paint container except in either (1) a coapletely enclosed room which shall, at all times except during access or substantial OCCUDanCy by the owner or an 5. This amendment was designed to address the concern of Cornell Office Products, representing the commercial sector, that our businesses should be given more flexibility as to how to keep implements of graffiti from the public while at the same time, permitting it to be displayed for sale. 6. This idea was obtained through Officer Dan Hollian, Chula vista Police Department. 7. The regulatory aspect of this provision is admittedly controversial because it imposes a duty on all persons to "lock up" their "graffiti-abIes" when they are not present. The sub- committee on graffiti ended up approving the provision, but Staff invites the council to debate the philosophical aspects: A. What is the purpose of the provision? To reduce vandal access to "graffiti-abIes. B. How effective is the provision to achieve the intended purpose? staff believes that a significant amount of graffiti- ables (probably more spray cans than markers) are obtained as a result of theft from open and unattended garages, storage rooms, etc. Staff believes that mere discussion of the provision will help raise the level of awareness of residents of the problem and help to keep garages and storage rooms closed and locked when they are not in attendance. C. What are the undesired consequences? Unfortunately, the regulation constitutes an intrusion into the private lives of non-vandals in order to help control a serious, community-wide problem. We have attempted to mitigate the intrusive effect by putting a restrictive enforcement policy in the ordinance which provides that the section is not to be enforced except when its violation has contributed to an act of graffiti vandalism. graf8.wp June 3, 1991 Proposed Additions to Grafitti Ordinance Page 3 If) - )/ authorized adult representative of the owner, remain securely locked; or (2) in a cOllpletely enclosed cabinet or other storaqe device which ahall be p&raanently affixed to a building or building struoture, and which shall, at all times except during access by the owner or an authorized adult representative of the owner, reaain.eourely locked. For the oumoses of this section. an owner or authorized reoresentative of the owner. shall be deemed to have substantial OOCUDancy of a room even durina short oeriods of absence if the room is Dart of a laroer structure which is ooouoied by the owner. 1. Enforcement Policy on wronaful Storaae Offenses. It shall be the intention of the City to enforce this Drovision aaainst the -wronaful Storaae of Aerosol Paint containers- onlY when its violation has caused or oontributed to an act of vandalism bY a third Darty. II 9.20.045. Prohibition of sale, possession and display of felt tip markers. A. Sale or Furnishing To Minors. It shall be unlawful for any person, other than a parent or other legal guardian, to sell, exchange, give, loan, or other furnish, or cause or permit to be sold, exchanged, given, loaned, or otherwise furnished, any felt tip marker to any person under the age of eighteen years without the consent of the parent or other lawfully designated custodian of the person, which consent shall be given in person. B. Possession by Minors. It shall be unlawful for any person under the age of eighteen years to have in his or her possession any felt tip marker while upon public property or upon private property without the consent of the owner of such private property, except while attending, or travelling to or from a school at which the person is enrolled, if the person is participating in a class at said school which has, as a written requirement of said class, the need to use felt tip markers. C. Display for the Purposes of Sale. No person, firm or entity engaged in a commercial enterprise (-Seller-) shall display any felt tip Ilarker for sale, trade or exchanqe, nor shall store any felt tip marker pending display for sale or pending sale, except in an area from which the oubHc shall be securely orecluded without emoloYee assistance. One such acceotable Ilethod for disolayina felt tio markers for sale shall be in a completely enclosed cabinet or other storage device which 8. This change was recommended by the Graffiti subcommittee as a way of making an official policy statement without making it look like a excuse for governmental intrusion into the private lives of the individual members of the public. graf8.wp June 3, 1991 Proposed Additions to Grafitti Ordinance Page 4 I/J - 1:l ahall be peraanently affixed to a building or building structure, and whic:b ahall, at all ti.es except during access by authorized representatives, r_ain .ecurely locked. D. wrongful storage of Felt Tip Markers. No person sh..ll store any felt tip urker except in either (l) a completely enclosed rooJl whic:b ahall, at all times except during access or substantial oc:cuoanev by the owner or an authorized adult representative of the owner, remain securely locked; or (2) in .. coapletely enclosed cabinet or other storage device whic:b shall be peraanently affixed to a building or building structure, and whic:b ahall, at all tiaes except during access by the owner or an authorized adult representative of the owner, remain securely locked. For the DUrDOses of this section. ..n owner or ..uthorized reDresent..tive of the owner. shall be deemed to have substantial oc:cuoanev of a room even durinQ short oeriods of absence if the room is Dart of a larqer structure whic:b is oc:cuDied bY the owner. 1. Enforcement Policy on wronQful storaQe Offenses. It shall be the intention of the city to enforce this Drovision aQainst the .wronQful storaQe of Felt TiD M..rkers. onlY when its violation has caused or contributed to an act of vandalism bY a third Darty. 9.20.050. Penalties for violation of chapter. A. Criminal Penalties. Any and all violations of this chapter shall be punishable either as an infraction or a mis- demeanor, at the discretion of the City Attorney.9 It is fur- ther understood that financial parental responsibility for any acts of vandalism shall be strictly enforced. B. Parental civil Responsibility for Damages. Any parent or other legal guardian who consents to, permits, or otherwise knowingly allows her or his c:bild under the age of eighteen to possess an aerosol paint container or a felt tip .arker shall be personally liable for any and all costs to any person incurred by any party in connection with the repair of any property caused by said c:bild, and for all attorney's fees and court costs incurred in connection with the civil prosecution of any clai. for d....ges. c. civil Responsibility for Damages wrongful Display or storage. Any person who displays or stores an aerosol spr..y container or felt tip ...rker in violation of the provisions of 9. This language is similar to Penal Code Section 594 for graffiti vandalism. Damages for illegal sale or possession are not expected to be significant. graf8.wp June 3, 1991t Proposed Additions to Grafitti Ordinance Page 5 If) -/3 this chapter shall be personally liable for any and all oosts inourred by any party in oonneotion with the repair of any property caused by . ainor who shall use such aerosol spray container or felt tip aarker in violation of the provisions of California Penal Code Seotion 594, and for all attorney-s f.es and oourt oost. incurred in oonneotion with the oivil proseoution of any olala for d&aages, not to exoeed $1.500.00. graf8.wp June 3, 1991 Proposed Additions to Grafitti Ordinance Page 6 Jt) - I~