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ORDINANCE: O-2008-18
SUBJECT: Add Sections 9.60.055 and 9.60.057 to Title 9 of the Lakewood Municipal Code pertaining to graffiti materials.
RECOMMENDATION: Mayor and City Council approve the proposed ordinance.
SUMMARY AND BACKGROUND OF SUBJECT MATTER:
Last year the Lakewood Police Department created a graffiti task force to develop a coordinated and effective method to prevent, report, enforce, and mitigate graffiti offenses within the City of Lakewood. One of the task force's recommendations was that new municipal ordinances that regulate the possession of graffiti materials be adopted to help fight the problem of graffiti. Numerous cities across the state, including Denver, Arvada, Colorado Springs, Englewood, Littleton, Pueblo, Westminster, and Wheat Ridge, have ordinances that regulate the possession of graffiti materials by minors and adults.
Proposed provisions of the graffiti materials ordinance
•Possession of Graffiti Materials by Minors Prohibited. The proposed ordinance creates a new penal provision that would prohibit minors, except for a minor under the direction or supervision of the minor's parent, legal guardian, instructor, employer, or a law enforcement officer, from possessing prohibited graffiti materials to include a can of spray paint, spray paint nozzle, broad tipped marker pen, paint pen, glass-cutting tool, or glass etching tool or instrument.
A possession of graffiti materials by minors charge would not require proof that the minor possessed the prohibited graffiti materials with the intent to use them to commit a criminal act. Laws may constitutionally place restrictions on children that would not be permissible if placed on an adult. Government has broader authority over the activities of children and may take into account a child's vulnerability and inability to make critical decisions in an informed mature manner.
• Affirmative Defense to Possession by a Minor of Prohibited Graffiti
Materials. It would be an affirmative defense to the charge of minor in possession
of prohibited graffiti materials that the minor was within the minor's home;
at the minor's place of employment and acting within the scope of that employment;
was upon real property with permission to possess such materials having been
given by the owner, occupant or person having lawful control of such property;
or attending a school or traveling to the school at which the minor was participating
in a class or school sanctioned activity that formally required the possession
of the materials.
• Unlawful Possession of Graffiti Materials. The proposed ordinance creates an new penal offense that would make it illegal for any person, including an adult, to possess graffiti materials if he or she possesses such materials with the intent to use the item possessed to commit a crime involving damaging, defacing, or destroying public or private property or knows that some other person intends to use the thing possessed, in the commission of such an offense.
As an analogy, the state statute that makes it a felony offense to possess burglary tools, Section 18-4-205, C.R.S. has repeatedly been upheld as constitutional by the Colorado Supreme Court and not vague or overbroad in its reach. The criminal statute does not prohibit the "innocent possession" of burglary tools but instead requires intent by the accused or knowledge that another intends to use the tool for a burglarious purpose. Likewise while the proposed definition of graffiti materials would include such things as a can of spray paint, a spray paint nozzle, a permanent broad tipped marker pen, it would only be illegal for an adult to possess such materials if there was evidence to prove that the materials were possessed with the unlawful intent.
DATE OF FIRST READING: July 14, 2008
DATE OF SECOND READING: July 28, 2008
ORIGINATED BY: Police Department
STAFF PERSON RESPONSIBLE: Janet Young, Deputy City Attorney, 303-987-7102
DOCUMENTS ATTACHED: Ordinance O-2008-18
SUBMITTED BY:
Kevin Paletta, Chief of Police
REVIEWED BY:
Joni Inman, Director, Mayor and City Manager's Office
Michael J. Rock, City Manager
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