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HomeMy WebLinkAbout3/24/2006 Z 0 /01�64� B A K E R S F I E L D CITY MANAGER'S OFFICE MEMORANDUM March 24, 2006 TO: Honorable Mayor and City Council FROM: Alan Tandy, City Manager I l T ILY r-1-5, SUBJECT: General Information 1. With regard to the Federal Courthouse issue, I was contacted this week by a GSA official who has been directed by the Inspector General of the GSA to conduct a review of the lease procurement process to determine whether the GSA was in compliance with the applicable laws and regulations for the lease procurement. The review is being done at the request of Congressman Thomas. Concurrently, the protest hearing has been on- going this week in Washington D.C. We understand it may conclude next week. We will update you when we receive more information. 2. As an addendum to a referral response from Chief Rector in the March 10th General Information packet concerning the implementation of increased staffing to focus on graffiti issues, there will be a Consent Calendar item on your April 5th agenda for authorization to hire an additional Community Relations Specialist. 3. Responses to Council requests are enclosed, as follows: Vice-Mayor Maggard • Status on expediting the rezoning of Rio Bravo Golf Course to open space; • Staff preparation of a resolution and letter to the State agency requesting legislative changes regarding group homes; Councilmember Couch • Staff contact with neighborhood residents concerned about the group home on Dorset, including a letter to Mr. Brennan; • Status report on the feasibility of a City/County agency task force to help suppress graffiti; Councilmember Scrivner • Citizen concern regarding a dump truck parking on Harris Road; • Staff actions related to citizen concerns regarding street racing, animal control, and traffic control at White Lane and Wible and Ming Avenue and Real Road; • Report on the options available to enforce penalties for graffiti offenders and the feasibility of offenders performing clean up work; research legislative information that will allow graffiti offenses to be prosecuted cumulatively up to a felony charge; the feasibility of prohibiting the sale of spray paint to those 21 and younger. AT:rs cc: Department Heads Pamela McCarthy, City Clerk B A K E R S F I E L D MEMORANDUM RECENED MAR 17 2006 CITY MANAGER'S OFFICE TO: ALAN TANDY, CITY MANAGER FROM: STANLEY C. GRADY, DEVELOPMENT SERVICES DIRECTOR DATE: March 17, 2006 SUBJECT: RE-ZONING OF RIO BRAVO Council Referral No. 1452 COUNCILMEMBER MAGGARD REQUESTED STAFF EXPEDITE THE RE-ZONING OF RIO BRAVO GOLF COURSE TO OPEN SPACE. Applicant (A & E Development) is required to make application and pay fees and has not done so. Once application is made staff can go forward. This is also a General Plan Amendment which must be placed on a (GP) hearing. Staff has encouraged the applicant to apply as soon as possible to hit the next General Plan Cycle (June). SG:jm B RK�RJ 1 r U p �L� Q IFOR�l MEMORANDUM CITY ATTORNEY March 23, 2006 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: JANICE SCANLAN, ASSISTANT CITY ATTORNEY SUBJECT: LEGISLATIVE CHANGES FOR GROUP HOMES COUNCIL REFERRAL NO. 001443 COUNCILMEMBER MAGGARD REQUESTED THE CITY ATTORNEY DRAFT A RESOLUTION AND LETTER TO SUZANNE ASH, STATE OF CALIFORNIA, REQUESTING LEGISLATIVE CHANGES REGARDING GROUP HOMES. PUT ON 4-5-06 AGENDA FOR COUNCIL APPROVAL AND SIGNATURE. The requested resolution and letter to Community Care Licensing for Council's signature have been placed on the April 5, 2006 agenda. Ms. Ash will receive a copy of the letter, as will Mr. Brennan. JS &:COUNCIL\Referrals\05-06 Referrals\Jviaggard-grouphomes.doc BAKE �F cone�oxre]Rs� � o L1F0R„`P MEMORANDUM CITY ATTORNEY March 23, 2006 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: JANICE SCANLAN, ASSISTANT CITY ATTORNEY SUBJECT: GROUP HOME AT 5809 DORSET COUNCIL REFERRAL NO. 001442 COUNCILMEMBER COUCH REQUESTED STAFF EXPLORE OPTIONS TO ASSIST THE RESIDENTS WITH PROBLEMS STEMMING FROM THE GROUP HOME. CITY ATTORNEY TO DRAFT LETTER TO HOMEOWNERS ADVISING THEM OF THE STEPS THEY NEED TO TAKE TO ASSIST WITH THEIR CASE. Assistant City Manager Alan Christensen has been in contact with neighbors and various persons concerning the issues at the group home. Attached is a letter sent to Mr. Brennan regarding options for the homeowners regarding the group home. JS S..000NCIL\Referra1s\05-06 Referrals\Couch-grcuphomes.doc CITY ATTORNEY VIRGINIA GENNARO ASSISTANT CITY ATTORNEY Janice Scanlan 0 • DEPUTY CITY ATTORNEY Robert Sherfy CITY OF BAKERSFIELD OFFICE OF THE CITYATTOPINEY 1501 TRUXTUNAVENUE BAKERSFIELD.CA 93301 TELEPHONE: 661-326-3721 FACSIMILE: 661-852-2020 March 23, 2006 Robert Brennan 5800 Dorset Drive Bakersfield, California 93306 Re: Group Home located at 5809 Dorset Drive Dear Mr. Brennan: I am writing this letter at the request of the Bakersfield City Council. They are as concerned about the issues involving the group home in your neighborhood as you are. The City Manager's office is coordinating efforts among appropriate City staff, including the City Attorney's office, to help alleviate the problems with this group home. In addition to our efforts, your neighborhood may want to consider contacting a private attorney to determine whether there is any legal action the neighbors can take. You and your neighbors may also want to consider contacting your state representatives to reiterate the position the City has taken and stress how important it is to ensure that neighbors of group homes are afforded the same rights as the residents of group homes themselves. If you have any questions, please feel free to contact me at (661) 326-3721. Very truly yours, �/JANICE SCANLAN Assistant City Attorney JS:do cc: Honorable Mayor and City Councilmembers Alan Christensen, Assistant City Manager 3:\COU NCI L\Leaers\05-06\grouphomedorsetowners.doc \J'NGORPOkA Tf�v� AK • .� BAKERSFIELD POLICE MEMORANDUM GARY 11 5., TO: ALAN TANDY, CITY MANAGER FROM: W. R. RECTOR, CHIEF OF POLICE 1 MAR 2 2 2006 DATE: MARCH 22, 2006 CITY MANAGER'S OFFICE SUBJECT: GRAFFITI SUPPRESSION Council Referral No. 1430 (Ward 4) Council Member Couch requested that staff review the feasibility of a task force (BPD, County Probation/Sheriff) to help suppress graffiti. On March 91h a meeting was held at the police department with representatives from Kern High School District, Kern County District Attorney's Office, Kern County Probation Department and Kern County Sheriff's Department. Representatives discussed efforts of the various agencies and a committee has been formed to create a network of information exchange and to coordinate enforcement efforts. Please call if you have any questions. WRR/vrf BA 0�`aOORPORgr,O S� As, BAKERSFIELD POLICE ' MEMORANDUM QY It �ALrF OR��� 6�cCEiVED TO: ALAN TANDY, CITY MANAGER MAR 2 2 2006 FROM: W. R. RECTOR, CHIEF OF POLICE' *" CITY MANAGER'S OFFICE DATE: MARCH 21, 2006 SUBJECT: TRUCK PARKING PROBLEM Council Referral No. 1447 (Ward 7) Council Member Scrivner requested staff contact Mr. Evanson regarding a recurring problem with a dump truck parking on the south side of Harris Road Obstructing the view of drivers as they exit Country Meadows onto Harris. On March 13, 2006, Lt. Jay Borton contacted Fred Evanson. Mr. Evanson said he contacted Council Member Scrivner and requested the south curb of Harris Road at Country Meadows be painted red to prevent any parking at that location. His complaint was with a large gardening truck blocking his view as he exited the private property. The vehicle left the area at the time he contacted the city with his request. Lt. Borton advised Mr. Evanson that he would patrol the area and check for any parking violations or traffic hazards; he also provided Mr. Evanson with his phone number and requested he contact him directly if there are any future problems. Mr. Evanson has not re-contacted the department since the original referral. JCB/vrf 11AI{Fk Q coxPOxe rfD S lip r• �� BAKERSFIELD POLICE MEMORANDUM WRY M �QF 01Z tCE D TO: ALAN T ANDY, CITY MANAGER 06 FROM: W. R. RECTOR, CHIEF OF POLICE CITY MANAGER'S OFFICE DATE: MARCH 21, 2006 SUBJECT: CITIZEN CONCERN REGARDING STREET RACING, DOGS AND TRAFFIC SIGNS Council Referral No. 1419 (Ward 7) Council Member Scrivner requested staff contact Ronald Shepard regarding street racing and report back to Council member Scrivner; staff to provide status report on the process and priority of addressing the large issue of street racing citywide; staff address Mr. Shepard's concerns regarding response time to an animal control complaint; and staff address concerns of poor traffic flow due to traffic signals at the intersections of White Lane and Wible, and Ming Avenue and Real Road. Mr. Shepard previously contacted the police department regarding the on-going issue of large parties and street racing in and around his neighborhood. Captain Tim Taylor followed-up by calling Mr. Shepard the day he called the Police Department. Call histories have been obtained and our watch commanders have been made aware of the problem. Several of the calls placed by Mr. Shepard and his neighbors were listed as "no contact" so officers did not follow-up when they arrived to handle the complaints. Our midnight watch commander has been tasked with developing a strategy to address both the loud party issue and the street racing problem; he too has spoken to Mr. Shepard. We may make use of the City's loud party ordinance to address the first problem and our Traffic Section maintains a "no tolerance" posture toward street racing. Captain Bob Bivens oversees animal control issues; he contacted Mr. Shepard regarding the late response to a stray dog on his block. Mr. Shepard said the dog was a white pit bull that was very friendly. He indicates he called at 3:30 on February 21 st and no one responded. A review of our dispatch records revealed a call entry on February 21st at 3:47 p.m. The call was held as a non priority (6). Animal Control Supervisor Tammy Davis responded and cleared at 6:10 p.m. the reporting party requested no contact and the animal was gone. MEMORANDUM o��`B oaxEhs� CITY ATTORNEY'S OFFICE U d Mfn 9g �9LtF o March 20, 2006 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: JANICE SCANLAN, ASSISTANT CITY ATTORNEY SUBJECT: COUNCIL REFERRAL NOS. 001397 AND 001410 COUNCILMEMBER SCRIVNER REQUESTED STAFF PREPARE A COMPREHENSIVE REPORT REGARDING OPTIONS AVAILABLE FOR ENFORCEMENT OF PENALTIES FOR GRAFFITI OFFENDERS AND TO RESEARCH THE FEASIBILITY OF OFFENDERS PERFORMING CLEANUP WORK. ADDITIONALLY, COUNCILMEMBER SCRIVNER REQUESTED STAFF TO RESEARCH INFORMATION ON LEGISLATION THAT WILL ALLOW GRAFFITI OFFENSES TO BE PROSECUTED CUMULATIVELY UP TO A FELONY CHARGE, AS WELL AS THE FEASIBILITY OF PROHIBITING THE SALE OF SPRAY PAINT TO THOSE 21 AND YOUNGER. During the City Council meetings of January 25 and February 8, 2006, Council Member Scrivner requested staff to respond to various questions regarding graffiti. A. GRAFFITI STATUTES AND PUNISHMENTS The crimes of applying graffiti to public or private properties are codified in Penal Code sections 640.5, 640.6, 640.7, 640.8 and 594 et. seq. Depending on the amount of damage and the criminal history of the offender, the crimes can be infractions, misdemeanors or felonies. The elements and punishments for the various offenses are set forth below. Penal Code Section 640.5 Penal Code Section 640.5 prohibits affixing graffiti onto government or public transportation vehicles. A first offense with damage less than $250 is an infraction with a fine not to exceed $1,000 and a range of community service hours from 48 to 200 to be completed over 180 days. If the defendant has a prior conviction for a graffiti offense, the crime is charged as a misdemeanor punishable by no more than 6 months in jail, a maximum $2,000 fine or both. Community service ranges from 96 to 400 hours over a maximum of 350 days. If the defendant has 2 or more prior graffiti convictions, the maximum sentence is increased to one year in jail, the maximum fine is increased to $3,000 and the community service hours are HONORABLE MAYOR AND CITY COUNCIL March 20, 2006 Page 2 increased to a maximum of 600 over 480 days. For any amount of damage, if the victim desires, the court will order the defendant to clean up the graffiti. The fine is passed through to the entity whose property was damaged to try to offset the cost to clean, repair or replace the damaged vehicle. Penal Code Section 640.6 Section 640.6 criminalizes affixing graffiti to the property of another. It sets forth that if the graffiti damage is less than $250.00, it should be charged as an infraction unless the defendant has prior vandalism convictions. The punishments under this section are the same as 640.5. Additionally, if the victim desires, the court may order the defendant to clean up, repair or replace the damaged property. If minors cannot pay, the parents or legal guardian are liable for the fine. Penal Code Section 640.7 Section 640.7 prohibits affixing graffiti within 100 feet of a highway or its appurtenances. This crime is a misdemeanor punishable by a maximum of 6 months in jail, $1,000 fine or both. If the defendant has a prior graffiti conviction, the maximum jail term is increased to one year. There is no mention of community service in this statute. Penal Code Section 640.8 Section 640.8 prohibits affixing graffiti on a highway or its appurtenances. This crime, too, is a misdemeanor, punishable by a maximum of one year in jail, a $5,000 fine or both. Additionally, the court may order up to 480 hours of community service to be completed over 420 days. Penal Code Section 594 Section 594 is broader than the 640 series crimes. Section 594 prohibits not only defacing property with graffiti, but damaging or destroying the property of another. If the amount of the damage is less than $400, it is charged as a misdemeanor, punishable by no more than one year in jail, a fine of no more than $1,000 or both. If it is a second offense, the maximum fine increases to $5,000. There is no mention in the statute of community service. If the damage is more than $400, it is charged as a felony. The punishment is a maximum of one year in jail or a $10,000 fine. The statute does not call for both fine and imprisonment. However, if the damage is over$10,000, the fine increases to up to $50,000, and the option of both the fine and imprisonment are included. For all convictions of Section 594 (misdemeanor and felony), the court may order the defendant to clean up, repair or replace the damaged property himself or herself or, if the defendant is a minor, order the defendant and his or her family to keep the damaged property or another specified property in the community free of graffiti for up to one year. The court HONORABLE MAYOR AND CITY COUNCIL March 20, 2006 Page 3 can relieve the parent or guardian of their duty to help if they are a single parent with other child-care issues or their assistance will be detrimental to the defendant. As with Section 640.6, if the minor cannot pay, the parents are liable for the fine. Penal Code Section 594.1 Section 594.1 prohibits the sale of spray paint to and the purchase and possession of spray paint by minors and others. The section makes it unlawful to sell or furnish spray paint to a minor. Additionally, it is illegal for minors to purchase spray paint. It is also unlawful for a minor to possess spray paint with the intent to deface property. Additionally, this section prohibits anyone (of any age) from carrying spray paint in plain view at a "posted" public facility, such as a park. "Posted" means an actual sign is erected prohibiting the carrying of spray paint. All of those crimes are misdemeanors punishable by no more than 6 months in jail and a $1,000 fine or both. In addition, for convictions of minors in possession, the court can order community service of up to 100 hours for a first offense; 200 hours for a second offense and 300 hours for a third and subsequent offense. Penal Code Section 594.2 Section 594.2 prohibits the possession of specific graffiti tools with the intent to deface property. This crime is a misdemeanor, punishable by a maximum of 6 months in jail, $1,000 fine or both. The court may order 90 hours of community service. Penal Code Section 594.3 Section 594.3 prohibits vandalism at any place of worship. It, too, is a misdemeanor. However, the maximum jail sentence is one year. There is nothing in the statute regarding a fine or community service. Penal Code Section 594.4 Section 594.4 prohibits using acid or other caustic substance to deface property. The statute states the punishment can be state prison or jail, but does not list a maximum or minimum time, a fine or both. If the damage is less than $400, the fine is no more than $1,000. If the damage is$400 or more but less than $5,000, the fine is no more than $5,000. If the damage is $5,000 or more, but less than $50,000, the fine is no more than $10,000. If the damage is $50,000 or more, the fine is no more than $50,000. For all convictions of Section 594, 594.3 and 594.4, the court must suspend the driver's license of the defendant for one year. If the defendant is too young to have a license, when they are old enough to get a license, they cannot receive it for one year from the time they would be eligible. (Vehicle Code Section 13202.6). Bakersfield Municipal Code section 9.36.040 regulates how retailers must display spray paint HONORABLE MAYOR AND CITY COUNCIL March 20, 2006 Page 4 and certain marker pens. A violation of this section is a misdemeanor punishable by a maximum 6 months in jail or $500 fine or both. BMC section 9.36.050 prohibits the sale of certain marker pens to minors and the purchase of those pens by minors. A violation of this section is a misdemeanor punishable by a maximum 6 months in jail or $500 fine or both. BMC section 9.36.060 prohibits the possession of certain marker pens by minors on public or private property. Additionally,the section prohibits anyone (of any age)from being on private property without the owner's permission and in possession of spray paint with the intent to deface the property. A violation of this section is a misdemeanor punishable by a maximum 6 months in jail or $500 fine or both. B. GRAFFITI SENTENCES 1. Adults According to Kathy Lemon, the Division Director of Adult Services for the County Probation Department, thirty-four probation officers are supervising 8,000 felony probationers. She does not know or handle any felony probationers who were convicted of a felony for affixing graffiti. For misdemeanor convictions, defendants are placed on summary probation —they are not assigned to a particular probation officer and there is no direct supervision. The typical sentence for a misdemeanor vandalism conviction is: 3 years summary probation, $500 fine, 80 hours of community service(even though it is not mentioned in the statute, it can be in lieu of jail time), restitution and a waiver of fourth amendment rights (allows officers to search for paint or graffiti tools without getting a warrant). If an adult is sentenced to custody for the misdemeanor vandalism, they will most likely be eligible for work release. The supervisor of the work release program at the Sheriff's Department indicated that no members of their work release program are in the program for graffiti-related offenses. 2. Juveniles When juveniles are "convicted" of graffiti offenses, they are treated somewhat different than adults. The standard sentence for a misdemeanor graffiti offense is: 3 years probation (or until age 18, whichever is longer), suspension of the driver's license for one year, 64-100 hours of juvenile work program, $50 to the state restitution fund, restitution to the actual victim, a fourth amendment waiver to allow search for paint, marking pens, etc. and they are HONORABLE MAYOR AND CITY COUNCIL March 20, 2006 Page 5 required to attend school if they are school age. There is no fine imposed unless the juvenile has the ability to pay. Even though most statutes say the parents or guardian are liable for the fine, there will be no fine imposed unless the juvenile, themselves, have the ability to pay (i.e., a job or other source of income). Unlike adult graffiti probationers, juvenile probationers are monitored by the County Probation Department. The juvenile probation officers carry an average caseload of 160 cases. C. LAW PROHIBITING THE SALE OF SPRAY PAINT OT PERSONS UNDER 21 Currently, Penal Code section 594.1 prohibits the sale of spray paint to minors. In state law, minors are defined as under 18 years of age. While it is possible for the City to enact a law prohibiting the sale of spray paint to persons under the age of 21, we may want to research how many people between the ages of 18 and 21 are actually involved in graffiti offenses. The probation department indicates that most graffiti offenses they see involve juveniles. During the pilot community prosecutor program, only 27 cases alleging Penal Code section 594 and one case alleging section 594.2 were handled. It is impossible to know if all or a portion of the 594 cases were for graffiti related offenses or other acts of destroying property. Additionally, it is possible that those numbers will increase when the community prosecutor program is in full swing. Since BMC section 9.36.060 prohibits people of any age to have spray paint on private property with the intent to deface it, we may not need to prohibit the sale of spray paint to persons under the age of 21. Additionally, it may be difficult to justify prohibiting the sale of spray paint to persons between the ages of 18 and 21, since there are many people in that age group who would have a legitimate need for the paint. D. PROPOSED LEGISLATION ALLOWING CUMULATIVE CHARGING OF MISDEMEANORS TO INCREASE TO A FELONY CHARGE We have searched proposed legislation from 2003 up to the current session and cannot locate any legislation which would allow the elevation of a charge of graffiti to a felony based upon the accumulation of the individual misdemeanor acts. If is doubtful that such legislation would survive a constitutional (due process)attack. While it is lawful to elevate second and subsequent offenses to felony status (petty theft is an example), there has to have already been a prior conviction for petty theft before second and subsequent offenses can be charged as felonies. However, if there were several uncharged offenses which were all in themselves misdemeanors, each would need to be charged as a misdemeanor. They could not be grouped together to amass more than $400 worth of damage and be charged as a felony. Each charge is treated as a separate offense. However, as stated in the Statute and Punishment Section of this memo, it is clear that the HONORABLE MAYOR AND CITY COUNCIL March 20, 2006 Page 6 punishment for subsequent graffiti offenses increases. For example, an infraction (Penal Code section 640.6) is elevated to a misdemeanor if the defendant has any prior graffiti convictions. However, nowhere are misdemeanors elevated to felonies because of prior convictions. E. FEASIBILITY OF DEFENDANTS CLEANING UP GRAFFITI While the Penal Code statutes allow the court to order graffiti offenders to clean up the area that they defaced, there are several reasons why it may not be a viable solution. First, the entire adult prosecutorial process can take anywhere from two months to over one year, depending on many factors. Juvenile cases are resolved in approximately 4 months--start to finish. As graffiti is unsightly and breeds more graffiti, the City's policy has always been to remove it as soon as possible. If the graffiti were allowed to stay on the property until the criminal case were adjudicated, by the time the defendant went to clean it up, there would most likely be much more graffiti at that same location—exacerbating a problem it was meant to solve. Additionally, the probation department has indicated that, when graffiti is on private property, many times in the past, the owners of the property did not want the people that defaced the property to be anywhere near them or their property. Years ago, the juvenile probation work program spent a lot of time cleaning up graffiti. When the City instituted 32-Erase, the juvenile work program moved on to other duties. We inquired whether the program could be reinstated, but there is too much demand for juvenile work forces countywide. When graffiti cases are prosecuted criminally, the court can order the defendant to pay restitution to the victim as a term of probation. Unless the City is the direct victim, however, there is not much chance of receiving the restitution. The City has already adopted an ordinance to abate graffiti as a public nuisance and place a lien upon the property to offset the cost of such abatement. The process is similar to that used for weed abatement and other summary abatements. When the perpetrator of the graffiti is a minor, the City can recover the cost of removing the graffiti from the parents or guardian via civil suit. Currently, Civil Code section 1714.1 makes parents and legal guardians liable for damage caused by their minor children. BMC section 9.36.070 also allows the City to pursue such costs. To collect on such costs, the City needs to file a civil complaint and prove its case at trial. If judgment is awarded, the case is turned over to a collection agency for payment. HONORABLE MAYOR AND CITY COUNCIL March 20, 2006 Page 7 F. CITY ORDINANCES When the State passed most of the Penal Code graffiti statutes, it specifically prohibited cities from enacting similar statutes — preempting cities from doing so. In any situation involving graffiti where the State has not preempted cities from enacting ordinances, Bakersfield has done so. Our Municipal Code permits the City to recover the cost of graffiti cleanup directly from the offender or, if the offender is a minor, to recover the cost from the parents or legal guardian. Thus, every aspect of punishing offenders is in place. The hardest part of prosecuting and punishing graffiti violators, however, is catching them. CONCLUSION There is a plethora of State laws prohibiting affixing graffiti to property. The Bakersfield Municipal Code prohibits everything involving graffiti that can legally be prohibited by a city. Therefore, the tools are in place. The Community Prosecution program will make sure that the laws will be enforced when the perpetrators are caught. JS SACOUNCIL\Referrals\05-06 Referrals\Scrivner-Graffiti punishment.doc