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The Role of Local Lawmaking in Community Anti-Graffiti Planning

by Robert Hills, Executive Director, National Council to Prevent Delinquency

 

Introduction

Legislation

An Orderly Approach

A Word of Caution

The Needs Analysis

A Basic Outline

Resources

 

Introduction

While acknowledging the existence of an organized graffiti "art" subculture, most persons experienced in the field agree that the greatest volume of graffiti vandalism has little to do with art and stems from larger and more complex problems in the society. Among these are the breakdown or absence of family structure; the lack of values education for the very young; and the inability of the system to convey, promote and enforce such fundamentals as parental responsibility, respect for authority, respect for property and pride in community.

As a consequence, long-term success in combating graffiti requires comprehensive programming that addresses each of these components as well as remediation for the damage and problems created by the vandalism, itself.

That kind of programming can only be achieved through an act of collective political will on the part of the community -- institutions and citizens working together toward a common goal.

In the following, we will explore the role legislation can play in reaching that goal, reducing graffiti vandalism and attacking the crime at its roots. Also, we will outline the basics of a comprehensive community anti-graffiti ordinance and its application.

 

Legislation - An Orderly Approach

Comprehensive anti-graffiti planning encompasses three basic categories -- education, law enforcement and abatement (clean-up).

In creating a simple and workable program design, the proper order of planning activities is essential.

One logical order is to:

The best example of this planning order, or variations on it, in the development of anti-graffiti programs and legislation is the "task force" approach to the problem.

Under this approach, municipal or county leadership — city council, mayor, county commission, county executive — brings together a multi-disciplined group of citizens, educators and involved government agencies to assess the graffiti problem and design a comprehensive program to combat it.

The legislative needs that become apparent through this process are limited, for the most part, to filling perceived gaps in existing state and local law and to providing the necessary powers to implement components of the program.

For example, task force research could reveal that most local graffiti vandalism was committed by "taggers" and that rapid clean-up has been shown to reduce incidents of tagger graffiti.

Logically, this finding would lead to a proposal for a comprehensive "blight ordinance" to assure the prompt removal or cover-up of publicly visible graffiti on private property.

In most instances, existing statutes and ordinances dealing with crimes against property can be applied to graffiti crimes. It is only in those situations in which that application is unclear or in which the task force consensus is that existing law requires strengthening or expansion that new legislation can be truly positive and productive.

Recently, the areas in which we have seen the most new local laws are penalties for vandals, parental liability and victim restitution.

 

Legislation - A Word of Caution

There are few crimes against property that generate the anger, frustration and fear triggered by graffiti vandalism.

Both the victims and their neighbors are outraged at the violation of property and by the image of vandal "gangs" roaming the neighborhood.

When this occurs, one of the first to hear about it will be the neighborhood's elected representative -- a city council or county commission member. With minor variations, the irate citizen's request is always, and understandably, the same. Do something!

That request/demand from the voters creates a special dilemma for the elected official.

A major and highly visible function of council and commission members is the formulation and passage of ordinances. It is one of the few tangible ways in which elected legislators can respond to their constituencies.

Consequently, in any issue area presenting widespread and heated voter sentiment, the pressure to "do something" frequently results in the introduction and passage of new law.

The process provides many opportunities for public statements, testimony and media exposure. Further, given the right level of fervor, virtually any legislation labeled "anti-graffiti" stands a good chance of passage.

Unfortunately, legislation produced in such an atmosphere often can have a certain "Ready! Fire! Aim!" quality to it and stands a lesser chance of being on target.

While this is not news to readers in and around local government, including elected officials, it is intended not as criticism, but as a reminder that anti-graffiti legislation is formulated in the real world of local politics.

That means that the developing of meaningful anti-graffiti legislation can and, often, will be affected by a number of subjective pressures quite separate from the problem and the community's long-term best interest.

Among these are:

Whatever your role in the process, you can contribute to the quality of policymaking by being aware of these pressures, by not falling prey to them yourself, and by being supportive of local elected officials who take a reasoned approach to the issue.

 

Legislation - The Needs Analysis

Earlier, we referred to an orderly approach to planning - designing a program path from where we are to where we want to be.

An important component of that planning and program preparation is the enabling of government to set certain standards, to take certain actions, and to require certain behaviors to reach or sustain a collective community good.

The appropriate enabling vehicle, in some cases, will be legislation.

The needs analysis, audit or legislative inventory is simply the matching of existing law to the needs of the comprehensive anti-graffiti program and formulation of legislative language to fill the gaps or provide for strengthening or expanding the law to cover aspects of the programming not addressed by the existing municipal or county code.

This process is not as complicated as it may sound. The following outlines basic categories and the information required in each.

The Crime - While most community ordinances define vandalism or property defacement, those definitions may fall short of describing graffiti crime. Further, the community may want to deal with graffiti vandalism differently than it deals with a broken window.

Consequently, current law should be reviewed to assure that it contains:

Further, if graffiti crimes are going to include the possession of potential graffiti tools "with intent" to commit a crime or proscribe such possession in certain circumstances, i.e., on public property or on private property without owner consent, it is essential to check the ordinance for definitions of graffiti tools.

Finally, if the anti-graffiti plan restricts access to potential graffiti tools, i.e., prohibits sale of spray paint to minors, are these products currently defined by law?

If the existing code falls short in any of these areas, new legislation may be required.

Penalties - While existing ordinances will specify penalties for vandalism, it is unlikely that those penalties will be entirely responsive to the unique and repetitive nature of the majority of graffiti crimes.

For example, "tagging", the most common form of graffiti, places a high premium on the number of "tags" and their public visibility. As vandals, "taggers" bear no particular animosity toward individual properties or property owners. Devoid of any respect for property rights, they select targets on the basis of location and risk.

While many taggers are young adults, most start tagging or join crews in their early teens.

Because they begin committing these crimes early, inflict such extensive damage, and are often difficult to catch, the penalty language in the ordinance provides a rare opportunity not only to mete out punishment for the crime, but also to right other wrongs.

For example, penalties can include victim restitution; provide labor (community service) for clean-up; and, in the case of juveniles, force acceptance of parental responsibility.

If any or all those goals are in your programming, they belong on your needs list in this category.

Abatement - While most communities have ordinances dealing with the accumulation of trash, overgrown lots and other eyesores and hazards, these laws often do not provide adequately for the clean-up of graffiti defaced structures.

A growing body of data indicates that rapid and efficient removal or cover-up of graffiti can substantially reduce the recurrence of graffiti crime.

To assure timely and efficient clean-up, the local needs analysis should review provisions for the removal of graffiti from private property and the payment for such removal.

New Requirements - If the anti-graffiti plan contains actions or restrictions in areas in which the government has not previously been involved, those areas should be reviewed in the context of existing law and authority to determine the need for new enabling legislation, if any.

 

Legislation - A Basic Outline

In drafting new local law, the actual implementation results tend to be better if the authors are realistic and if they assume that those persons carrying out public policy have a reasonable amount of good sense.

Legislative drafting is not the place for micromanagement.

As stated earlier, comprehensive community anti-graffiti programs usually contain three elements or components - education, law enforcement and abatement.

The education component deals with prevention -- teaching respect for property and pride in community -- thus directing or redirecting children and youth away from graffiti vandalism.

The law enforcement component defines the actions which are proscribed as violations of property rights and community standards and metes out penalties for those violations.

The abatement or graffiti removal component provides the rules governing and the process implementing the removal or correction of damage inflicted by graffiti crime.

As the organization of most local governments separates funding and management of the school system from the funding and management of government, it is the latter two elements or categories on which most local legislation is focused.

While there are certainly educational aspects to the law enforcement and abatement portions of anti-graffiti programming, they are almost always remedial or rehabilitative in nature and not "educational" in a preventive sense in that they do not channel behavior before it becomes anti-social.

The following outline is provided for the reader who is amending an existing ordinance or blocking out a new anti-graffiti ordinance.

Your city, township, or county attorney will be familiar with existing law and will be proficient in drafting ordinance language. Form, style and authority vary somewhat from jurisdiction to jurisdiction.

What the attorney needs to know from the anti-graffiti program planners is what, specifically, you want to do.

The information you supply should include the following:

1. Definitions - The new public policy is going to deal with subjects and terms which, in many cases, have not been mentioned previously in the law. You need to define them.

Some examples would be:

2. Prohibited Acts - This is the section that focuses on the vandal. The two principal prohibited acts described in this section will probably relate to applying graffiti -- "defacement" -- and illegal possession of graffiti implements.

In it, you will want to be sure to describe:

If you are planning to implement retail sales or retail display restrictions for potential graffiti tools such as spray paint or markers, those restrictions should be included in this section.

Currently, the most common sales restriction is a ban on sale of spray paint to minors. If your plan includes this restriction, be sure to include terms such as "furnish" and "convey" as prohibited acts to cover the purchase of these items by persons over 18 years of age on behalf of minors.

3. Penalties - Creating and applying penalties for graffiti crimes can be the most complex and frustrating aspect of anti-graffiti program development and application. It can also be the most challenging and rewarding.

The area of most difficulty is usually that of juvenile penalties. While adult vandals can be dealt with in a more straightforward fashion, juvenile justice processes tend to involve at least two jurisdictions (city and county). They also contain additional steps intended to protect the juvenile and to offer counseling or rehabilitative alternatives prior to or in place of traditional sentencing, particularly for first offenses.

This approach is generally considered to be sound public and social policy, but it is somewhat maladaptive to the young graffiti vandal, particularly the "tagger." While these young people most assuredly can benefit from intervention and juvenile services, a mild response to their "first offense" is not necessarily in their best interest or in the best interest of the community, for two reasons:

Consequently, a productive sentencing package for the juvenile vandal who either pleads guilty or is found guilty of a first graffiti offense should include a standard minimum combination of penalties that includes most or all of the following:

Further, all law enforcement or juvenile justice agencies involved in intervention or diversion programs which, in effect, adjudicate juvenile crimes prior to or in place of formal proceedings should, as a matter of public policy, be educated to the serious and unique nature of graffiti crimes. These agencies should be further instructed to include the above sentencing components as part of any disposition made of the case or any agreement struck with the juvenile vandal and his or her parents or guardians.

If the vandal is an adult, the same cautions should be raised with respect to a "first offense." While tradition and trust in the wisdom of the courts dictate that the law be flexible with regard to fines and jail time, victim restitution should be an integral part of sentencing, either through cash or clean-up, as should be community service.

4. Graffiti Removal (Abatement) - The rapid, thorough and efficient removal of graffiti and repair of graffiti damage is the single most visible component in a community anti-graffiti program.

It is also a component that usually requires a great deal of community coordination and, frequently, changes in or the establishment of a nuisance or "blight" ordinance.

To get an idea of the potential complexity of an abatement plan, picture for a moment a single intersection in your neighborhood. Then picture a tagger moving quickly around the four corners of that intersection leaving his mark on every surface.

In a few minutes, that vandal can tag light poles, stop signs, telephone poles, a mail box, a few small businesses and maybe one or two private homes.

The property owners then responsible for removing that graffiti or providing permission for its removal could include a public utility or public works department, the streets or highway department, the phone company, the U.S. Postal Service, one or two businesses and a few homeowners -- about eight separate and diverse persons, organizations and companies.

The abatement portion of the anti-graffiti plan must include the methodology by which graffiti removal sites are determined and approached while preserving the rights of property owners.

Further, the plan needs to be reasonable and supportive of property owners or they will perceive themselves as twice victimized -- once by the vandal and again by the city or county.

Local abatement legislation can help dispel that victim image by providing an even-handed approach to enforcement, a reasonable hearing and appeal procedure, and assistance to property owners who are repeat targets of vandals or in other unusual or difficult circumstances.

Yet another effective response to property owner concerns, and one that helps assure rapid uniform clean-up, is for the government to include, with the owner's permission, private property as well as public property in its systematic removal plan.

However the actual graffiti removal is organized and implemented, a legal framework is required to enable the community to affect the cleaning or repair of vandal damage.

To that end, the basic abatement law, often referred to as a "nuisance" or "blight" ordinance, should include the following:

More recent abatement ordinances also include provisions developed from practical experience in graffiti removal. For example, some might require above-ground fixtures for utilities (phone, TV cable, electric) to use common colors; or developers to keep building sites graffiti free and/or provide for government access as a part of the building permit requirements; or graffiti prevention specifications in the requirements for new construction or building renovation.

Information of these variations can be obtained from the organizations listed below under "Resources."

5. Other Components - While the above are the principal components of a community anti-graffiti law, some cities and counties choose to include other aspects of their anti-graffiti programming in local ordinances.

Two examples would be rewards for citizen informants and retail spray paint display standards. Specific information on these and other aspects of legislative development can also be obtained from the organizations described in the following section.

 

Resources

As more local governments establish web sites, information gathering and direct access to knowledgeable individuals should become easier and more cost effective.

However, in the development of local ordinances and their integration into comprehensive anti-graffiti programming, the following are recommended as sources for information on the topic.

International Municipal Lawyers Association

The first is the International Municipal Lawyers Association (IMLA), formerly the National Institute of Municipal Law Officers (NIMLO).

Based in Washington, D.C., IMLA is a non-profit professional organization that has been an advocate and valuable legal resource for government attorneys since 1935. IMLA provides its more than 1,400 U.S. and Canadian members continuing legal education courses; research services; litigation assistance; the bi-monthly publication, The Municipal Lawyer; and a facsimile document on demand system, Muni-Fax.

Of particular value to local governments or attorneys drafting new laws or amendments will be the IMLA Model Ordinance Service. Combining the organization's extensive research and legal drafting capabilities, the Service can provide assistance and direction in shaping ordinance language on virtually any subject addressed by local governments.

IMLA can be reached by phone: (202) 466-5424; by fax; (202) 785-0152; or by E-Mail: imladc@aol.com.

The National Council to Prevent Delinquency

The second is the National Council to Prevent Delinquency (NCPD). The NCPD is a nonprofit corporation, funded by the paint and related industries, to combat the illegal or dangerous misuse of consumer products, particularly by young people.

The Council's Anti-Graffiti Project maintains an extensive library of municipal program and ordinance information. NCPD also serves as a clearinghouse, collecting actual ordinances and program language from around the country and providing governments and community groups with copies of legislation enacted and in use in other municipal settings.

The NCPD can be reached by phone: (410) 897-9209; by fax: (410) 897-9205; or by E-Mail: ncpdgraf@erols.com.

 

Copyright 1997. All rights reserved. National Council to Prevent Delinquency, P.O. Box 2975, Annapolis, MD 21404.