San Marcos Mercury | Local News from San Marcos and Hays County, Texas

February 18th, 2009
San Marcos council tables graffiti ordinance

San Marcos Police Chief Howard Williams spoke to the city council on behalf of the proposed graffiti ordinance Tuesday night. Photo by Andy Sevilla.

Associate Editor

A heated debate yielded an inconclusive result at Tuesday night’s meeting of the San Marcos City Council.

The council unanimously decided to once again table a controversial ordinance dealing with discretionary police authority. This time, the ordinance would have given police the powers to site persons carrying graffiti implements within ten feet of public infrastructure.

Earlier this month, the council tabled a “host responsibility” ordinance revision that would have replaced references to “unlawful level of noise” with “excessive level of noise,” giving police officers the authority to determine how much noise is excessive.

“We need to have faith that our officers have judgment,” San Marcos Mayor Susan Narvaiz said Tuesday night. “If we don’t have that faith we shouldn’t be employing them.”

Citizens and councilmembers argued Tuesday night against the proposed graffiti ordinance, which would make it illegal to carry indelible markers and/or aerosol cans within ten feet from public infrastructure.

“It seems like this is gonna be another unenforceable personal responsibility ordinance y’all are trying to implement,” said Texas State student Dan McCarthy, who ran for mayor last year. “It’s just not gonna help (with curtailing graffiti), I don’t think.”

Another remark during citizens comment period came from San Marcos resident Kara Sweidel, who said she has a problem with police having discretionary authority on whether it was appropriate to carry a marker in her backpack.

“To say that someone may or may not carry implements is not a law that this city needs,” Sweidel said. “The way it’s written now is not acceptable.”

Among the ordinance’s dissenters, Councilmember Chris Jones was the most vocal in opposition to the proposed legislation.

“What we’re making policy on is on hypothetical situations and preventing hypothetical situations,” said Jones. “I think this is bad policy.”

The ordinance would provide for police officers to use “reasonable” judgment in issuing citations. The officers would have to question why an apparent offender was present at the location and why that person carried restricted materials.

“We have no way to intervene before damage is done,” San Marcos Police Chief Howard Williams said. “What we’re asking for is permission to have a reasonable officer, who sees a person preparing to affix graffiti and with implementation (tools), to cite them.”

Jones said the policy goes too far and that other methods may be more productive, adding that the ordinance is not necessary as it only reiterates what police are hired for.

“What would be more of a deterrent; the presence of officers or an ordinance?” Jones asked. “To catch them we’re going to need officers there.”

“It’s going to be very difficult to guarantee we’ll have an officer there to catch someone affixing graffiti,” Williams said.

Narvaiz said concerns of a “far-reaching government” are present. However, she said the ordinance should not just be about holding people accountable, but getting to the root of the problem and figuring out why graffiti is being affixed.

“I don’t like (the ordinance) anymore than the next person,” Narvaiz said. “But we have issues our citizens want us to address.”

Last year the city purchased a $32,000 soda-blaster in efforts to remove affixed graffiti. Williams said the ordinance amplifies the council’s energy to eradicate unwanted markings.

Councilman John Thomaides asked whether discretionary authority was appropriate in all circumstances. He painted a scenario in which a group of kids is present with backpacks in an area where graffiti is affixed, and asked Williams whether searching them is an option.

“The officer is going to have to rely on his training on what is a reasonable search and what is not a reasonable search,” Williams said. “The act of graffiti takes five seconds, but the possession of the implements takes time.”

Jones expressed frustration in the lack of data available to warrant such an ordinance, adding that “due diligence” was not performed by the police department before recommending the legislation to council.

“There’s parts of this (ordinance) I feel I can support,” Thomaides said. “And there’s other parts that I can’t.”

Director of Community Services Rodney Cobb said the battle against graffiti is working, but not as effectively as desired.

“We’ve done a bridge three times because as soon as we get it off, (graffiti) goes back on again,” Cobb said. “We need to stay on top of it.”

Williams said currently graffiti is being removed only from public infrastructure, but added that private property owners are starting to speak-up and solicit help in removing ill-favored markings. Among them is the San Marcos CISD.

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0 thoughts on “San Marcos council tables graffiti ordinance

  1. What if the council holds a public educational meeting on this proposed ordinance. Therefore allowing for citizens to directly address the situation to council members. City staff could also present everyone with the data, Chris Jones wants, and is expected to be scrutinized before an ordinance is implemented (haha no pun intended).

  2. How come every Thursday, Friday, and Saturday night, San Marcos Police Officers stand outside of the bars on the Square and watch hundreds of drunk college students stumble to their cars/SUVs/trucks and drive off?

    So SM police officers have the judgment to determine if a kid with a marker is going to tag, but they don’t have the judgment to determine if someone who leaves a bar at closing time, reeks of alcohol, and stumbles to their vehicle is drunk?

  3. Many cities have not only eliminated the graffiti problem but by offering a public art space for taggers, both entities have found mutual benefits.

  4. Now that really is an angelic idea. The council should definitely look into a wall for public art, somewhere citizens can express themselves artistically. This may be a component of what the mayor said or answer to her question… “Narvaiz said concerns of a ‘far-reaching government’ are present. However, she said the ordinance should not just be about holding people accountable, but getting to the root of the problem and figuring out why graffiti is being affixed.”
    I think that although some graffiti is indeed mal-intended, some may be eliminating with the implementation of a public art wall somewhere in town. Or hold educational seminars. I want this council to address our problems proactively, not just by passing any ordinance that comes before them.

  5. Maybe our elected officials are starting to pay attention to the citizens here.

    All this expansion of “reasonable judgment” is fraught with trouble. Search and seizure laws are written how they are to prevent abuse. I am not assuming the new ordinance will be abused by our current officers, but why leave the temptation there for future (possibly less scrupulous) officers.

    I have to hand it to Council for not rubber-stamping this. I wish they would have been as vigorous on the noise ordinance and the pet microchipping. For that matter, the ordinance about having to have a light on my bicycle at night is another silly one.

    One out of four ain’t bad though – and a definite step in the right direction. (Assumming that ‘tabling” the matter isn’t a way of moving it out of the public eye with the intention of passing it privately.)

  6. Let me start off by saying I think this is a stupid ordinance and I’m glad it was tabled.

    That being said, I think a lot of people are misunderstanding the “discretion” that is being suggested by many of these ordinances.

    What is proposed is discretion to decide that no law was broken. The alternative is to have them arrest everyone who violates the letter of the law.

    For example, if the law were to pass and it said that you can’t carry spray paint within 10 feet of a bridge and the police were given no room to use their own discretion, then everyone they found with spray paint near a bridge would have to be arrested.

    They are allowed to use their discretion to let people go, not to arrest people who haven’t violated the ordinance to begin with.

    Elimination of discretion equals more arrests, not fewer.

  7. Ted I think you might be mistaken. The point of this ordinance is to give permission for cops to cite those with markers or cans of spray. This ordinance makes it illegal to carry those items, and enables cops to cite someone before a crime occurs. It’s ment to prevent crime, so being innocent until you actually do something illegal is thrown out the window.

  8. If some private business actually let people park in their parking lots… sigh…with the help of a parking lot attendant who would charge them to park there, therefore paying for the parking attendant, the private business could also benefit from profit if there is any made and ,to add to the run on sentence, therefore eliminating the parking issues downtown, eliminating possible tagger with the presence of a parking attendant, Does anyone know how and if the city of Austin works with the private property owners who offer parking space at night to the public?

  9. Yes, the ordinance would make it illegal to carry the paint or markers in certain areas. I didn’t say otherwise.

    Discretionary authority would allow the police to make exceptions. If the ordinance passed without allowing that discretion, it would make a bad (proposed) ordinance even worse, as the police would not be allowed to make exceptions.

  10. Here is the pertinent section of the ordinance:

    (a) It shall be unlawful for any person to have in his or her possession any graffiti implement in any public park, public school ground, public library, public playground, public swimming pool, public recreational facility, any or other public grounds or public buildings in the city when such premises are closed to the public.

    (b) It shall be unlawful for any person to have in his or her possession, for the purpose of defacing property, any graffiti implement within 10 feet of any underpass, overpass, bridge abutment, storm drain, or similar type of infrastructure.

    (1) A person is presumed to possess the graffiti implement with the intent to make graffiti on such property if while within 10 feet of the infrastructure he possesses on or about his person at least:
    a. one aerosol paint container; or
    b. two graffiti implements other than an aerosol paint container.

    (2) Before taking any enforcement action under subsection (b)(1) of this section, a police officer shall ask the apparent offender’s reason for being within 10 feet of the underpass, overpass, bridge abutment, storm drain, public right-of-way, or other similar type of infrastructure with a graffiti implement and whether the apparent offender has the consent of the property owner to be on the property and to possess the graffiti implement. The officer shall not issue a citation or make an arrest under subsection (b)(1) of this section unless the officer reasonably believes that an offense has occurred and that, based on any response and other circumstances, no defense described in section 54.084 is present.

    Now, read that without section (b)(2) and tell me that it is not MUCH worse that way. That’s my only point. That paragraph gives officers the disretion to let people go. Delete it and it’s “arrest em all and let the courts sort it out.”

    Personally, I’d still delete the whole ordinance.

  11. That is the whole issue, this ordinance is not needed, it should not be passed! If, and only if, this ordinance is passed, then more discretionary authority will also be passed on to the police officers. Ted your argument that more arrests would be made is a little unfounded. The crime would be a Class C misdemeanor, highly unlikely, if ever, an arrest would be made. Also, it would make it illegal to have markers – how ridiculous would that be!? The only reason this ordinance would pass, is to give officers more discretino on whether someone is about to commit a crime. One that has not yet been commited, meaning they’re innocent of any wrong doing.

  12. More arrests, more citations, whatever. I think you are arguing to argue, so I’m going to move on. I was merely making a point about people continuously stating that the police have “too much discretionary authority” when that generally means they have the authority to decide to let people go.

  13. I assure you I dont engage in petty arguments just for the hell of it, but anyway, this ordinance only gives officers more discretionary authority that they currenlty dont have over something that currently isnt illegal. You can expect citizens to not be outraged when there is a possibility to be cited for a crime that has not taken place.

  14. Seriously? You guys can’t even phathom the thought of the parking attendants? Are you people kidding me? Yall gripe about the parking , pay hundreds of thousands of dollars to a company to look into our parking problems downtown and what I am pointing out about the whole dang issue is just fluff? Seriously disturbing.You all are uneffective and unreachaable.

  15. Sigh, please point out a place for me around downtown where it would be economically feasable to have a parking lot with attendants.

  16. Parking lot attendants would be able to be present therefore eliminating much of the graffiti. Where would it not be economically feasable? Can somone please look into how Austin does it?There are cleaners and even the post office as well as across from The little HEB.

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