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HomeMy WebLinkAboutItem 8.4 PublicArt VandalismCITY CLERK FILE #920-65 AGENDA STATEMENT CITY COUNCIL MEETING DATE: April 2, 2002 SUBJECT: ATTACHMENTS: Increased Penalties for Public Art Vandalism Report Prepared by: Gary L. Thuman, Police Chief None RECOMMENDATION: 1. Receive report If desired, provide direction to Staff regarding additional action or study FINANCIAL STATEMENT: None at this time DESCRIPTION: A high priority goal and objective for Police Services for FY 2001/2002 was to determine the viability of increasing penalties for public art vandalism. The City Attorney provided legal research for this matter. Legal research determined that it would be difficult for the City to increase the criminal penalties for vandalism of public art. California Penal Code § 594 establishes the definition of vandalism and the punishment for this offense. This section allows for the following punishments: If the damage is between $400 and $10,000, up to one year in state prison or county jail or up to $10,000 in fines; if the damage is $10,000 or more, the same potential imprisonment and/or a fine of up to $50,000; and if the damage is less than $400, imprisonment in the county jail for up to one year and/or a fine of up to $1,000. A court may also order the defendant to clean up, repair, or replace the damaged property or order the defendant, and his or her parents or guardians if the defendant is a minor, to keep the damaged property or another specified property in the community free of graffiti for up to one year. If a minor is personally unable to pay a fine, the parent of that minor is liable. A court may also order counseling. Therefore, the City is most likely preempted from enacting additional criminal penalties. It is the City Attorney' s opinion that the City Council may adopt civil regulations and penalties pursuant to Penal Code § 594.5 for the defacing of public art. Penal Code § 594.5 in pertinent part states: "Nothing in this code shall.., prohibit the adoption of an ordinance by a city.., if the ordinance.., sets forth civil administrative regulations, procedures, or civil penalties governing the placement of graffiti or other inscribed material on public.., property." The City may adopt an ordinance allowing use of public funds to clean up graffiti and to recover its costs of abatement, which it already has in Municipal Code Chapter 5.68 (and authorized by Government Code § 53069.3 and 38773 et seq.). The means of cost recovery are a lien or special assessment against the property on which the graffiti exists, or in the case of a minor vandal, on H/cc-forms/agdastmt. doc COPIES TO: ITEM NO. the property of his or her parents or guardians. Chapter 5.68 does not currently contain a provision allowing the imposition of a lien or assessment on the property of a minor's parents or guardians to recover the City's abatement costs. The Council could also consider putting a measure on the ballot to impose a special tax on the sale of items used for graffiti type activity (e.g. cans of spray paint). This revenue could then be used for graffiti prevention and removal; it would require 2/3 approval. (See Revenue & Tax Code § 7287 to 7287.10). Finally, the Council could consider creating an administrative graffiti abatement program and charging all sellers of materials that can be used for graffiti a fee for the administration of the program. Graffiti is already declared a nuisance. The City could adopt an ordinance requiring sellers of graffiti-related materials to make them accessible only to employees, and declare failing to do so a nuisance. It could then adopt another ordinance creating an enforcement program that encompasses all of those laws to prevent and clean up graffiti. Part of the program could be the imposition of a fee to cover the costs of enforcement and clean up. Implementing this would require significantly more research, but it is theoretically possible. This report is presented for City Council's information and review. Staff recommends that Council provide direction to Staff regarding additional action or study, if desired.