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SHERWIN-WILLIAMS CO. v. CITY & CTY. OF SAN FRANCIS

July 13, 1994

THE SHERWIN-WILLIAMS COMPANY, et al., Plaintiffs,
v.
CITY AND COUNTY OF SAN FRANCISCO, Defendant.



The opinion of the court was delivered by: WILLIAM H. ORRICK

 Graffiti vandalism--the outrageous scarring of real property both public and private with unintelligible markings made by irresponsible persons--plagues San Francisco as it does other cities in the United States and Europe. Many of these cities have attempted to curb this thoughtless despoiling of property by laws called "lock-up" laws. San Francisco has adopted a form of "lock-up" law by enacting an ordinance making it illegal for retailers to display for sale markers or spray paint unless they are maintained in places accessible only with employee assistance.

 Plaintiffs The Sherwin-Williams Company, Plasti-Kote, Inc., Tru-Test Manufacturing Company, Aervoe-Pacific, Inc., Western Aerosol Information Bureau, AptarGroup, Inc., Seymour of Sycamore and Center Hardware and Supply (collectively, "Plaintiffs") have moved this Court to permanently enjoin defendant, the City and County of San Francisco, from enforcing San Francisco Ordinance No. 333-93. A preliminary injunction was entered in this matter on December 6, 1993, and a trial was held February 28 through March 3, 1994. Witness testimony was supplemented by voluminous written testimony submitted during the post-trial briefing stage which concluded on March 28, 1994. For the reasons set forth in this Opinion and Order, which constitutes the Court's findings of fact and conclusions of law required by Rule 52(a) of the Federal Rules of Civil Procedure, the Court DENIES plaintiffs' motion for a permanent injunction and vacates the order granting the preliminary injunction.

 I.

 A.

 SAN FRANCISCO ORDINANCE NO. 333-93

 In the Fall of 1993, and in response to the continuing and growing plague of graffiti in San Francisco, Supervisor Annemarie Conroy announced her "Blueprint for Battling Graffiti in San Francisco--'Zero Tolerance'", a comprehensive graffiti control program. On October 25, 1993, the. San Francisco Board of Supervisors approved one aspect of the Blueprint, Article 42, Chapter VIII of the San Francisco Police Code, which makes it unlawful for retail commercial establishments in San Francisco to store or display spray paint or marker pens ("markers") in an area that is accessible to the public without employee assistance. (Stipulation of Undisputed Facts ("SUF") P 13.) On October 29, 1993, Mayor Frank Jordan approved Article 42, designated as San Francisco Ordinance No. 333-93 ("Ordinance").

 The Ordinance provides:

 
Be it ordained by the people of the City and County of San Francisco that:
 
Section 1. Chapter VIII of the San Francisco Municipal Code (Police Code) is hereby amended by adding a new Article 42 thereto reading as follows:
 
ARTICLE 42
 
Sale and Display of Spray Paint and Marker Pens
 
* * *
 
Section 4201. STORAGE AND DISPLAY OF AEROSOL PAINT CONTAINERS AND MARKER PENS.
 
(a) It shall be unlawful for any person who owns, conducts, operates or manages a retail commercial establishment where aerosol paint containers or marker pens are sold to store or display, or cause to be stored or displayed, such spray paint containers and marker pens in an area that is accessible to the public without employee assistance in the regular course of business pending legal sale or other disposition.
 
(b) Nothing herein shall preclude the storage or display of spray paint containers and marker pens in an area viewable by the public so long as such items are not accessible to the public without employee assistance.

 The Ordinance was intended to reduce the amount of graffiti damage in San Francisco which both sides agree is pervasive throughout the City. (SUF PP 4,5,27; Conroy Decl. P 3,5; City Ex. B). Faced with similar graffiti epidemics, dozens of California cities and cities throughout the United States have enacted similar laws in recent years. Such laws are known as "lock-up" laws.

 B.

 THE PARTIES

 Plaintiff The Sherwin-Williams Company ("Sherwin-Williams") is an Ohio corporation, with its principal offices in Ohio. Sherwin-Williams manufactures spray paint products in California, Ohio, Michigan and Illinois, and its products are made of component parts which are obtained from sources inside and outside California and which move in interstate commerce. Sherwin-Williams directly sells its spray paint products through its own retail store in San Francisco. Sherwin-Williams also sells its spray paint products through distributors in San Francisco.

 Plaintiff Tru-Test Manufacturing Company ("Tru-Test") is a Delaware corporation, with its principal offices in Cary, Illinois. Tru-Test sells its spray paint products through distributors in San Francisco and elsewhere in interstate commerce. Tru-Test's spray paint products are sold by numerous retail commercial establishments in San Francisco, including individually owned True-Value hardware stores which are members of the cooperative that collectively owns Tru-Test.

 Plaintiff Center Hardware ("Center") is a California corporation, with its principal offices in San Francisco, California. Center operates as a retail commercial establishment in San Francisco. Center sells building products, hardware, a wide variety of aerosol products, including spray paint, and other products consumers typically buy from a hardware store. Center also sells markers with a tip larger than 4 mm.

 Plaintiff Plasti-Kote, Inc. also manufactures spray paint. Seymour of Sycamore, AptarGroup, Inc., Aervoe-Pacific and Western Aerosol Information Bureau are also plaintiffs in the action.

 Defendant City and County of San Francisco ("the City" or San Francisco) exists under the laws of California, and its ordinances are enacted by the Board of Supervisors, subject to the approval of the Mayor of San Francisco. (SUF P 15).

 C.

 GRAFFITI PERPETRATORS AND THEIR MOTIVATIONS

 "Graffiti" refers to an inscription, drawing or design, scratched, painted, sprayed or placed on a surface, without the consent of the owner, so as to be seen by the public. (SUF P 27). Graffiti vandals come from all racial, ethnic and socioeconomic backgrounds and the majority of persons who commit graffiti vandalism in San Francisco reside in the City. (SUF PP 6,7). Testimony at trial revealed that three distinct groups cause graffiti vandalism in San Francisco: hip hop graffiti writers, gang members and miscellaneous groups. (Tr. (DB) 37:21-38:1; SUF P 43). Each is discussed in turn below.

 1. Hip Hop Graffiti

 Hip hop graffiti *fn1" is part of the hip hop culture, which also includes certain styles of music, dress and other components. (Pl. Ex. 40; Tr. (DB) 3:22-25, 4:21-6:12).

 a. Types of Hip Hop Graffiti

 There are three types of hip hop graffiti: tags, throw-ups and pieces. (Pl. Ex. 40; Tr. (DB) 7:14-17; Tr. (RL) 95:24-96:5). Tags are stylized signatures of a writer's chosen street name. (SUF P 30; Tr. (DB) 9:5-24). Throw-ups are larger names or figures written in bubble style, often with an outline written in a different color than the interior of the letters. (SUF P 31; Tr. (DB) 12:7-10, 13:1-8).

 "Pieces"--short for masterpiece--are the most elaborate type of hip hop graffiti. (SUF P 32; Tr. (DB) 13:9-16). Pieces are detailed, multi-colored murals that range in size, although they are typically larger than tags and throw-ups and may cover an entire building wall. (SUF PP 33,34; Tr. (DB) 13:9-25, 14). Of the three types of hip hop graffiti, tags are by far the most common. According to one expert's rough estimate, there are approximately 100 times as many tags in San Francisco as throw-ups or pieces. (Tr. (DB) 38:14-21).

 b. Social Organization of the Hip Hop Culture

 The social organization of the hip hop culture includes "classes" and "crews." (Pl. Ex. 40). "Classes" refer to two loosely identifiable groups of hip hop graffiti writers: taggers and elite writers. (Pl. Ex. 40; Tr. (DB) 36:12-23). Writers begin as taggers, concentrating on the writing of tags and throw-ups. (Pl. Ex. 40; Tr. (DB) 26:3-14). Approximately 85% of San Francisco's graffiti is caused by taggers. (SUF P 42). After developing their skills, taggers move onto pieces and those few writers who achieve significant fame through the execution of respected pieces become known as "elite writers." (Pl. Ex. 40; Tr. (DB) 26:3-14).

 Taggers may work alone or in groups referred to as "crews." (SUF P 46). "Crews" are groups of friends who write graffiti together and share materials and skills. (Pl. Ex. 40; Tr. (RL) 79:23-80:3; Tr. (S-J) 50:12-18; SUF P 46). When tagging, members of crews often write their crew tag as well as their individual tag. (SUF P 47). While many crews are local, there are some large crews with members located from San Francisco to Los Angeles and beyond. (SUF P 49). In addition, some crews may specialize in particular targets. (SUF P 50). For example, San Francisco has "yard crews" that specialize in tagging Municipal Railway vehicles in the MUNI yards. (SUF P 51). Individual taggers and tag crews engage in "battles" in which the object is to commit as much graffiti vandalism as possible within a defined area and defined time period. (SUF P 52; Tr. (RL) 84:21-85:10).

 c. Characteristics of Hip Hop Graffiti Writers

 Hip hop graffiti writers are overwhelmingly male. (SUF P 35). They tend to be teenagers, ranging in age from 12 to 20, although some writers begin earlier and some writers continue through their 20s and even 30s. (SUF P 36). Writers come from all racial, ethnic and social backgrounds and are highly mobile. (SUF P 6).

 d. Primary Values of Hip Hop Graffiti Writers

 Hip hop graffiti writers share two primary values: fame and, to a lesser extent, artistic expression. (Pl. Ex. 40; Tr. (DB) 22:6-23:11). These values help to explain the commitment to graffiti that many writers hold. (Id.).

 Taggers seek fame through their tagging activities and by competing with each other to obtain status. (SUF PP 40, 44). Three factors are important to achieving fame: (1) quality of work; (2) quantity of work; and (3) the risk involved in applying the graffiti. (Pl. Ex. 40; Tr. (DB) 22:9-24:2). To develop high quality work, dedicated writers practice. (Pl. Ex. 40; Tr. (DB) 23:5-11). They also learn skills from other writers as well as from books, magazines and newsletters devoted to hip hop graffiti. (Pl. Ex. 40; Pl. Exs. 17, 22, 33).

 Quantity, however, is the most important ingredient to achieving fame. (Tr. (DB) 22:14-23:4; Tr. (RL) 82:1-25). The motivation of a tagger is to write his name on as many surfaces as possible. (SUF P 37; Tr. (RL) 82:4-11). Another important aspect to quantity is the duration in which a particular tag stays in place. (Tr. (RL) 99:17-100:6; Pl. Exs. 98-105).

 Finally, graffiti is more highly valued if its application required the writer to experience risk or danger, for instance, that written on the "third rail" of the subway or across a highway sign. (Pl. Ex. 40; Tr. (RL) 82:22-83:4; Tr. (DB) 23:19-25). Indeed, some very dedicated graffiti writers are willing to risk their lives to apply graffiti in a dangerous, and thus prestigious, location. (Tr. (RL) 83:1-6). The second primary value, artistic expression, refers to the artistic value attributed to graffiti and is based on its style, originality and the technique used to create it. (Pl. Ex. 40; Tr. [DB) 23:5-11; Tr. (RL) 82:12-19; 84:3-11).

 Although each of the four values just discussed is shared, to some extent, by all taggers, both parties agree that there are different levels of commitment and experience within the tagging community. (SUF P 45). For "hard core" taggers, who comprise approximately 10% of the tagging population, committing graffiti is the central focus of their lives. (Pl. Ex. 40; Tr. (RL) 98:17-99:3). For example, a "247" is a 24 hours a day, seven days a week tagger and because of their commitment, "247s" as a group are responsible for a large percentage of graffiti in any given city. (SUF P 39; Tr. (RL) 98:6-21).

 At the same time, however, testimony revealed that 80 to 85% of graffiti vandals never progress to doing pieces and only 20 to 25% of graffiti writers in San Francisco have been writing for more than a year. (Tr. (DB) 39:14-19, 43:7-15). These figures reveal the volatility of the tagging population. Testimony also revealed that, in contrast to the dedication and planning exhibited by hard core taggers, many taggers are opportunists who put their ...


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