Coatings Ass'n v. City of Chicago, 803 F. Supp. 135, 142-43 (N.D. Ill. 1992); see also Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 383 (Cal. 1925).
In addition, and as outlined in great detail above, although the Ordinance may not deter the most committed graffiti vandals, the evidence suggests that it may very well frustrate the efforts of less committed taggers. Even two of plaintiffs' own witnesses conceded that the Ordinance could persuade some taggers to give up their habit. (Tr. (S-J) 56:18-57:3; Mann Dep. 108:19-109:10). This prediction was supported by Gardena's experience with its lock-up law. Ms. Araki testified that she witnessed a substantial and immediate reduction in graffiti in her neighborhood after spray paint sales were banned at a nearby swap meet, and another substantial and immediate reduction after the local Home Depot locked-up its spray paint. (Araki Decl. PP 7,8). Detective Mulroney, of the Gardena Police Department, confirmed Ms. Araki's experience through conversations with local taggers who told him that they tag less as a result of the lockup. (Mulroney Decl. P 16). Plaintiffs presented no evidence to the contrary.
As a whole then, the evidence supports the conclusion that the City can expect to reap actual benefits from the Ordinance in the form of deterrence. The benefits derived from the Ordinance will be enhanced by the fact that it will take effect at a time when the City is actively pursuing several other graffiti-fighting measures, including the use of "rolling paint shops" for quick remediation and greater coordination between various City departments to streamline remediation program. (Conroy Decl. PP 11,12,13). In addition, unlike other common measures, the Ordinance constitutes one of the few graffiti fighting tactics that is preventative in nature; that is, it works to keep graffiti tools out of the hands' of vandals and, therefore, prevents graffiti before it is produced, rather than concentrating on its abatement and removal. In light of these very real advantages, the Court cannot conclude that the minimal burden that the Ordinance places on interstate commerce is "clearly excessive" in relation to its "putative local benefits."
THE CITY'S POLICE POWER
Next, plaintiffs maintain that the Ordinance constitutes an improper exercise of the City's police power. Under Article II, Section 7 of the California Constitution, legislation violates the police power if it does not bear a reasonable relationship to its objectives or the means adopted by the legislation are not reasonably necessary for accomplishing these objectives. McKay Jewelers, Inc. v. Bowron, 19 Cal. 2d 595, 122 P.2d 543, 546 (Cal. 1942); Paraco, Inc. v. Department of Agriculture, 118 Cal. App. 2d 348, 257 P.2d 981, 984 (1953).
In considering a challenge to a city's police power, however, it is
well settled . . . that the determination of the necessity and form of . . . regulations . . . is primarily a legislative and not a judicial function, and is to be tested in the courts not by what the judges individually or collectively may think . . ., but solely by the answer to the question is there any reasonable basis in fact to support the legislative determination of the regulation's wisdom and necessity?
Consolidated Rock Prod. Co. v. City of Los Angeles, 57 Cal. 2d 515, 370 P.2d 342, 346, 20 Cal. Rptr. 638 (Cal. 1962). As a result of this principle, the police power is extremely broad and may not be limited lightly. Id.; Miller, 195 Cal. 477, 234 P. 381. Indeed, the California Supreme Court has warned that "the courts may differ with the legislature as to the wisdom . . . of a particular enactment as a means of accomplishing a particular end, but as long as there are considerations of . . . general welfare which the legislative body may have had in mind, which have justified the regulation, it must be assumed by the court that the legislative body had those considerations in mind and that the considerations did justify the regulation." Miller, 234 P. at 385-86.
The Ordinance is neither an unreasonable nor an arbitrary exercise of the City's police power. Rather, it bears a reasonable relationship to its objective of reducing graffiti by making two of the implements most commonly used to commit graffiti and most frequently stolen less susceptible to theft. It was not unreasonable for the Board of Supervisors to conclude that a reduction in the theft of these items would have a corresponding reduction in the amount of graffiti produced.
In considering an equal protection challenge to a piece of legislation, a court must make two preliminary determinations. First, it must identify the legislative body's classification of groups. Madarang v. Bermudes, 889 F.2d 251, 253 (9th Cir. 1989), cert. denied, 498 U.S. 814, 112 L. Ed. 2d 29, 111 S. Ct. 54 (1990). Next, it must identify the level of scrutiny applicable to such a classification. Id.
The Ordinance imposes obligations upon "any person who owns, conducts, operates or manages a retail commercial establishment where aerosol paint containers or marker pens are sold." Police Code § 4201(a). Thus, on its face, the Ordinance does not create any suspect classifications.
Because the Ordinance does not deprive plaintiffs of a fundamental right or classify along suspect lines, such as race, it must be upheld if it is rationally related to a legitimate end. See Burlington N. R. Co. v. Ford, 119 L. Ed. 2d 432, U.S. , 112 S. Ct. 2184, 2186 (1992); see also Madarang, 889 F.2d at 253 ("In the area of economics and social welfare, legislative classification satisfies the requirements of equal protection if it has some reasonable basis and if any state of facts can be conceived to justify it.") (citation omitted). Under the rational relationship standard, legislative bodies "are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude." City of New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976) (per curiam). The requirements of the Ordinance are rationally related to the City's legitimate interest in reducing graffiti because they deter theft of the implements most favored by graffiti offenders.
In addition, the plaintiffs' contention that the Ordinance is underinclusive because it does not restrict access to alternative products that may be used to create graffiti is also flawed. The Supreme Court has held that "a legislature need not 'strike at all evils at the same time or in the same way.'" Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 66 L. Ed. 2d 659, 101 S. Ct. 715 (1981) (quoting Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 79 L. Ed. 1086, 55 S. Ct. 570 (1935)). Rather, "a legislature 'may implement [its] program step by step, . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.'" Id. (quoting New Orleans v. Dukes, 427 U.S. at 303-04). In drafting anti-graffiti legislation, there was nothing irrational about the Board of Supervisors' decision to focus its energies on the most commonly used graffiti implements, rather than striking out at once at all of the available substitutes.
SUBSTANTIVE DUE PROCESS
Courts entertaining substantive due process challenges employ a "highly deferential standard [that] is functionally equivalent to the rational basis test in equal protection law." Munoz v. Sullivan, 930 F.2d 1400, 1404 n.10 (9th Cir. 1991). Moreover, "rational basis scrutiny simply does not require that legislation which furthers one [legislative] goal have no adverse side effects." Id. at 1405.
In considering an ordinance's conformity with substantive due process, courts must refrain from examining its effectiveness. Levald, Inc. v. City of Palm Desert, 998 F.2d 680 (9th Cir. 1993), cert. denied, 127 L. Ed. 2d 217, U.S. , 114 S. Ct. 924 (1994). Rather, the Ninth Circuit has cautioned
there is no requirement that the statute actually advance its stated purpose; rather, the inquiry focuses on whether "the governmental body could have had no legitimate reason for its decision." [In addition], "the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it."