Staff: Committee on Public Safety
Elizabeth Dubin, Counsel
Jennine Ventura, Policy Analyst
Office of the General Counsel
Alvin Bragg
Lauren Axelrod
THE COUNCIL
Report of the Governmental Affairs Division
Robert Newman, Legislative Director
Alix Pustilnik, Deputy Director
COMMITTEE ON PUBLIC SAFETY
Hon. Peter F. Vallone Jr., Chair
June 25, 2007
INT. NO. 576: By Council Members Vallone Jr., Fidler, James, McMahon, Nelson, Recchia Jr., Sears, Weprin and Oddo
TITLE: A Local Law to amend the administrative code of the city of New York, in relation to the possession and sale of graffiti instruments.
I. INTRODUCTION
On June 25, 2007, the Committee on Public
Safety, chaired by Council Member Peter F. Vallone Jr., will conduct a hearing
on Introduction 576, which amends the administrative code’s anti-graffiti
provisions. Those expected to testify
include representatives from the New York City Police Department (“NYPD” or “Department”),
the Mayor’s Community Assistance Unit (“CAU”), the National Council to Prevent
Delinquency, various community groups and associations, and other interested
parties.
II. THE PROBLEM OF GRAFFITI VANDALISM
Introduction 576 was drafted to address the pervasive and growing problem of graffiti vandalism in New York City. In addition to its negative effect on the aesthetic quality of New York’s neighborhoods, graffiti vandalism presents a significant economic burden by decreasing property values, frustrating local businesses, and forcing private citizens and the City to spend significant resources restoring vandalized surfaces. By one estimate, a staggering $12 billion a year is spent cleaning up graffiti in the United States.[1] Since 2002, New York City has removed over 77 million square feet of graffiti and in 2006 alone City agencies spent approximately $13.5 million for paint, labor and equipment to clean up graffiti.[2]
a. Anti-graffiti laws and initiatives
New York City has several laws it employs in its fight against graffiti. See New York City Administrative Code (hereinafter Admin Code) §10-117(a) (illegal to deface public or private property); Admin Code §10-117(b) (illegal to carry spray paint or marker with intent to make graffiti); Admin Code §10-117(d) (spray paint must be displayed behind counter in a locked case); Admin Code §117.3(b) (owner of commercial and certain residential buildings obliged to keep building free from graffiti); Admin Code §117.3(c) (City provides funds for graffiti removal from commercial and certain residential buildings for free if owner executes consent); Admin Code §117.3(e) and (f) (imposes fine for building owner who does not remove graffiti and allows City to clean this graffiti); Admin Code §10-117.2 (Mayoral reward of up to $500 for person who provides information leading to prosecution of persons violating §10-117) and Admin Code §10-117.1 (establishes anti-graffiti task force). The Department also enforces relevant New York State laws, which include New York State Penal Law (Penal Law) §145.60 (illegal to make graffiti) and Penal Law §145.65 (illegal to possess graffiti instruments with intent to commit graffiti).
In addition to enforcing existing laws, the City has a number of initiatives and programs to address graffiti vandalism. The NYPD works with the CAU, 311 and other City agencies on a Citywide Anti-Graffiti Initiative.[3] As part of this initiative, on its website the CAU provides a link to local anti-graffiti coordinators and maintains an updated list of locations where graffiti cleanup is pending or completed (searchable by precinct, borough, community board or council district).[4] The Mayor’s Paint Program distributes paint and supplies to community groups and neighborhood organizations in order to assist them in neighborhood improvement. In 2005, this program distributed 2,224 gallons of paint to communities in need.[5] The City itself cleans up a significant amount of graffiti vandalism – in 2005 and 2006 the City cleaned approximately 4,500 locations, more than double the number of locations cleaned in 2004.[6] Finally, the NYPD encourages citizens to report graffiti crimes by offering a reward of up to $500 for the arrest and conviction of anyone who commits graffiti vandalism.[7]
b. Graffiti remains a serious problem
In spite of the City’s anti-graffiti laws and initiatives, the problem appears to be getting worse. Statistics provided by the NYPD show that arrests for violation of Penal Law §§ 145.60 and 145.65 for the period 2003 through May 20, 2007 have been increasing every year: 2003 (1237 arrests), 2004 (1446 arrests), 2005 (2585 arrests), 2006 (2962 arrests).[8] Notably, there were more arrests in the first six months of 2007 (1583) than in all of 2003 (1237).
Similarly, the number of graffiti-related complaint calls to 311 is increasing. In 2004 there were 2,661 calls, in 2005 there were 4,861 calls and in 2006 there were 7,407 calls. This constitutes a 300% increase in graffiti-related complaints to 311 between 2004 and 2006.
III. GRAFFITI AND YOUTH
a. Graffiti
offenses are most commonly committed by young persons
Persons under the age of 21
constituted 69% of the City total for graffiti offenders in 2003, 71.6% in
2004, 72.6% in 2005, 78% in 2006 and 83% of the total so far in 2007.[9] According to U.S. census statistics graffiti
is disproportionately committed by young people in relationship to their
representation in the total population.
While people 10-20 years of age constitute only 14% of the New York City
population,[10] they
committed 69% of the graffiti crimes in 2003.[11] And while 51% of the population is between
the ages of 21 and 54,[12]
only 31% of those arrested for graffiti offenses in 2003 were part of this
older age group.[13]
NYPD statistics further show that the City has a particular problem with young adult offenders in the 18-20 years of age group. The percentage of graffiti offenders between the ages of 18-20 was 19.8% in 2003, 20.8% in 2004, 17.5% in 2005, 14.7% in 2006 and 14.2% thus far in 2007.[14] These percentages are more striking in comparison to the small percentage of the City’s population comprised of persons between the ages of 18-20 – only 4% in 2003.[15] The 18-20 age group commits statistically more graffiti crimes as compared to other young adults. To illustrate, in 2004, 312 of the City’s graffiti offenders were between the ages of 21 and 30 whereas in that same year 302 graffiti offenders were between the ages of 18 and 20. Thus, in 2004 there were almost as many graffiti offenders in the three-year age band of 18 to 20 year-olds as in the ten-year age band of 21 to 30 year-olds.
The fact that young adults commit graffiti disproportionately is not unique to New York City. Other jurisdictions such as Portland, Oregon, Bridgeport, Connecticut, San Francisco, California, Nevada and Vancouver have had similar experiences.[16] Indeed, graffiti prevention groups throughout the country have noted the phenomenon of young adult graffiti offenders. Robert Hills, Executive Director of the National Council to Prevent Delinquency, has stated that, “While many taggers are young adults, most start tagging or join crews in their early teens.”[17] Others note that, “For tagging, the ages generally range from 11-25….and those in their 20s are often ‘developed’ taggers preferring rail cars and walls that offer a canvas for their work”[18]
Perhaps it should not be surprising that youth commit a significant proportion of graffiti crime given that people under the age of 21 are generally less mature and responsible than those 21 and over. This characterization is borne out by recent research that shows that the brains of young persons do not mature until they are in their early 20s. As stated by one expert,
“The main index of maturation, which is the process called ‘myelination’ is not complete until sometime in the beginning of the third decade of life (probably around 20-22). The evidence is now strong that the brain does not cease to mature until the early 20s in those relevant parts that govern impulsivity, judgment, planning for the future, foreseeing of consequences, and other characteristics that make people morally culpable…Indeed age 21 or 22 would be closer to the ‘biological’ age of maturity.”[19]
b. Laws uniquely affecting persons under the age of 21
Many Federal, New York State and New York City laws recognize that persons under 21 years of age should be treated differently than other young adults. Some of these laws afford special protections to persons under 21. Section 1125(2) of New York’s Education Law and section 369-ee(1)(g) of New York Social Service Law define “children” as people under the age of 21.[20] As such, the parents of a person under the age of 21 are chargeable with the support of such child[21] and foster care must be provided to those under 21.[22] The right to free public education extends until age 21 or receipt of a High School diploma, whichever comes first.[23]
Other laws place restrictions on the activities and rights of individuals under the age of 21. New York State prohibits the sale of alcoholic beverages to anyone under 21 and prohibits the possession of alcohol with intent to consume to persons under 21.[24] Additionally, the New York State Zero Tolerance Law provides that a person under 21 cannot operate a motor vehicle with a blood alcohol concentration of .02%. (The limit is .08% for persons over 21).[25] A similar Federal Zero Tolerance Law has the same .02% limit.[26]
There also are Federal, State and City restrictions on the possession of weapons and ammunition by persons under 21. Under Federal law, gun dealers are prohibited from selling a handgun or ammunition to persons under 21.[27] In New York State it is illegal to license persons under 21 to carry, possess or sell firearms,[28] and in New York City no one under the age of 21 may be granted a permit or license to purchase, possess or carry a firearm.[29]
As with graffiti tools,[30] New York City restricts the possession of box cutters and laser pointers based on age. It is illegal to sell a box cutter to a person under 21 and it is illegal for such a person to possess one in a public place.[31] The possession of a laser pointer by a person under 20 is illegal on school premises.[32]
In addition, pursuant to various laws, individuals under the age of 21 cannot: obtain a Class A driver’s license or a Commercial Driver’s License with a hazardous materials endorsement,[33] supervise a driver with a learner’s permit,[34] practice law,[35] be licensed as a social works or a mental health counselor,[36] or apply for a certificate to operate a family care home.[37]
IV. INTRODUCTION NO. 576
a. Legislative history
In 2005, the City enacted Local Law 124, which amended the administrative code in relation to the possession and sale of graffiti instruments. More specifically, Local Law 124 made the following changes to the City’s anti-graffiti law (admin. code § 10-117):
- Prohibited any person from possessing an aerosol spray paint can, broad-tipped indelible marker or etching acid in any public place, any public building or any public facility with the intent to make graffiti. In addition, prohibited any person from possessing an aerosol spray paint can, broad tipped indelible marker or etching acid in or upon any motor vehicle with the intent to make graffiti. A “public place” was defined as a place to which the public or a substantial group of persons had access, and included, but was not limited to, any highway, street, road, parking lot, plaza, sidewalk, playground, park, beach, or transportation facility.
- Made it illegal for anyone under 21 years of age to possess any graffiti instruments, unless they had permission of the property owner to possess such graffiti instruments on the property or were carrying graffiti instruments to/from place of employment, subject to a fine of up to $250 and/or 15 days imprisonment.
- Made it illegal to sell graffiti instruments to any person under 21 years of age (the previous law made it illegal to sell to anyone under 18 years of age). A first offense was a B misdemeanor, subject to up to a $500 fine or ninety days imprisonment, or both. A subsequent offense was an A misdemeanor, subject to up to a $1,000 fine or one year imprisonment, or both.
- Retained the former law’s classification of a class B misdemeanor, subject to up to a $500 fine or 90 days imprisonment, or both, for the possession of graffiti instruments with intent to use them.
- In conformance with state Penal Law, made it an A misdemeanor, subject to up to a $1,000 fine or one year imprisonment, or both, for a person to “make graffiti.”
After the enactment of Local Law 124, several artists brought a lawsuit in federal court seeking to invalidate the anti-graffiti amendments on the grounds that they: (i) violated the plaintiffs’ First Amendment rights to freedom of expression, and (ii) discriminated against the plaintiffs on the basis of their age and in violation of their equal protection rights. The trial court granted plaintiffs’ motion for a preliminary injunction[38] to the extent that the amended law applied to individuals between the ages of 18 and 21. The trial court held that the plaintiffs made the requisite showing of irreparable harm, in part because the law subjects plaintiffs to criminal prosecution and significantly stifles artistic expression. In addition, the court held that plaintiffs were likely to ultimately prevail because, while preventing graffiti vandalism is a substantial governmental interest, applying “intermediate scrutiny” the court found the restrictions on the sale and possession of graffiti implements appeared not to leave open ample alternatives for lawful expressions of graffiti art. Finally, the trial court held that plaintiffs had a likelihood of success on their equal protection claim because there was no rational basis to treat those who are at least the age of 18 but not yet the age of 21 differently than persons who are 21 years old and older.
On appeal, the Second Circuit upheld the preliminary injunction prohibiting enforcement of the Local Law 124 amendments.[39] Also applying an intermediate scrutiny analysis, the court found that the challenged provisions imposed too heavy a burden on speech and were not narrowly tailored to achieve the City’s goal of combating graffiti vandalism. The court provided two reasons for its finding that the provisions were not narrowly tailored: (1) the City offered insufficient evidence of the need to increase the age limit for the sale prohibition from 18 years-old to 21 years-old, and (2) the new “under 21” possession and sale prohibitions impose strict liability and do not account for an individual’s intent to use the prohibited materials. The court also expressed concern about the breadth of the possession restrictions because they may be interpreted to preclude possession, by those under 21 years of age, in any public place.
b. Introduction 576
Introduction 576 amends the City’s anti-graffiti law, as amended by Local Law 124, to address the concerns raised by the courts in the pending litigation.
First, in response to the Second Circuit’s First Amendment concerns, Introduction 576 minimizes any burden on the exercise of protected speech by including multiple express exceptions to the general restriction on possession of the prohibited materials in or on the property of another. Specifically, there is no restriction on possession of graffiti materials in the following situations:
· Where the prohibited item is contained in a manufacturer-sealed package or completely enclosed in a locked container, which shall include bags, backpacks, briefcases and other containers that can be closed and secured with a key or combination lock;
· To any person possessing the prohibited item while in or on the property of another where:
§ The owner, operator or other person having control of the property, building or facility consented in writing to the use or possession of the item; or
§ The use of the prohibited item is under the supervision of the owner or person in control of the property; or
§ The person is at his or her place of employment and the prohibited item was, will be or is being used during the course of such employment and is used with written permission from or under the supervision of his or her employer or such employer’s agent; or
§ The person is at an educational facility and uses or will use the prohibited item at the educational facility, where he or she is enrolled, and is participating in a class at the education facility that requires the use or possession of such item; or
§ The person is on the property of another and uses or will use the prohibited item in or on the property of another if such use or possession is necessary to participate in a government-sponsored function or in other circumstances where a government agency gives its consent to such use or possession.
Addressing additional First Amendment concerns regarding overbreadth and vagueness, Introduction 576 limits the possession restriction by providing a clearer definition of the property upon which an individual is prohibited from possessing an open or unlocked container of the specified graffiti instruments. “Property of another” is defined as “all property, including real property, that is not owned, rented, or leased by a person [the graffiti material possessor]; provided that such term shall not include a location that serves as such person’s residence.” (emphasis and explanatory parenthetical added). This definition thus allows a person to possess graffiti implements free of regulation while they are in any property that they personally rent, lease or own, including but not limited to a personal residence, motor vehicle or art studio.
Finally, in reevaluating and amending Local Law 124, the City has provided herein extensive statistics and a thorough discussion illustrating the link between youth and graffiti offenses. These additional findings are intended to assuage the courts’ concerns regarding equal protection and insufficiency of evidence to warrant increasing the age limit for the sale prohibition from 18 to 21 years of age.
Int. No. 576
By Council Members Vallone Jr., Fidler, James, McMahon, Nelson, Recchia Jr., Sears, Weprin and Oddo
A Local Law to amend the administrative code of the city of New York, in relation to the possession and sale of graffiti instruments.
Be it enacted by the Council as follows:
Section 1. Declaration of legislative findings and intent. The Council hereby finds that 18-, 19-, and 20-year olds are disproportionately responsible for graffiti crime.
§2. Section 10-117 of the administrative code of the city of New York is amended by adding new sections a-1 and a-2 to read as follows:
a-1. For purposes of this section, “property of another” shall mean all property, including real property, that is not owned, rented, or leased by a person; provided that such term shall not include a location that serves as such person’s residence. a-2. For purposes of this section, “educational facility” shall mean any building affiliated with an institution that maintains a list of enrolled students and is used for educational purposes for more than twelve (12) hours per week for more than six (6) students.
§3. Subdivision b of section 10-117 of the administrative code of the city of New York, as amended by local law number 124 for the year 2005, is amended to read as follows:
b. No person shall possess an aerosol spray paint can, broad tipped indelible marker or etching acid [in any public place, any public building or any public facility] with the intent to violate the provisions of subdivision a of this section. [No person shall possess an aerosol spray paint can, broad tipped indelible marker or etching acid in or upon any motor vehicle with the intent to violate the provisions of subdivision a of this section. For purposes of this subdivision only, "public place" means a place to which the public or a substantial group of persons has access, and includes, but is not limited to, any highway, street, road, parking lot, plaza, sidewalk, playground, park, beach, or transportation facility.] §4. Subdivision c of section 10-117 of the administrative code of the city of New York, as amended by local law number 124 for the year 2005, is REPEALED, and a new subdivision c is added to read as follows: c. No person shall sell or offer to sell an aerosol spray paint can, broad tipped indelible marker or etching acid to any person under twenty-one years of age. §5. Subdivisions c-1 and c-2 of section 10-117 of the administrative code of the city of New York, as amended by local law number 124 for the year 2005, are amended to read as follows: c-1. No person under twenty-one years of age shall possess an aerosol spray paint can, broad tipped indelible marker or etching acid in or on the property of another [or in any public building or upon any public facility]. This subdivision shall not be deemed to prohibit the possession of an aerosol spray paint can, broad tipped indelible marker or etching acid where such item is contained in a manufacturer-sealed package or completely enclosed in a locked container, which shall include bags, backpacks, briefcases and other containers that can be closed and secured with a key or combination lock. c-2. [When a] This section shall not apply to any person [is found to] possessing an aerosol spray paint can, broad tipped indelible marker or etching acid while in or on the property of another [or in any public building or upon any public facility] in violation of subdivision c-1 of this section, [it is an affirmative defense that] where: (1) the owner, operator or other person having control of the property, building or facility consented in writing to the [presence] use or possession of the aerosol spray paint can, broad tipped indelible marker or etching acid; or (2) such person uses or possesses the aerosol spray paint can, broad tipped indelible marker or etching acid under the supervision of the owner or person in control of such property; or ([2]3) such person is [traveling to or from] at his or her place of employment [,where it] and the aerosol spray paint can, broad tipped indelible marker or etching acid was, [or] will be or is being used during the course of such employment and used only with written permission from, or under the supervision of his or her employer or such employer's agent; or (4) such person is at an educational facility and uses or will use the aerosol spray paint can, broad tipped indelible marker or etching acid at the educational facility, where he or she is enrolled, and is participating in a class at the educational facility that requires the use or possession of such items; or (5) such person is on the property of another and uses or will use the aerosol spray paint can, broad tipped indelible marker or etching acid in or on the property of another if such use or possession is necessary to participate in a government-sponsored function or in other circumstances where a government agency gives its consent to such use or possession. §6. This local law shall take effect immediately. LALS # 32025/4/07