Sherwin-Williams v. City & County of San Francisco

• Decision Date: 14 July 1994
• Docket Number: No. C-93-4179 WHO.,C-93-4179 WHO.
• Citation: 857 F. Supp. 1355
• Court: U.S. District Court — Northern District of California
• Parties: The SHERWIN-WILLIAMS COMPANY, et al., Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant.

857 F. Supp. 1355

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

No. C-93-4179 WHO.

United States District Court, N.D. California.

July 14, 1994.

COPYRIGHT MATERIAL OMITTED

Thomas G. Dent, Lawrence E. Butler, Cynthia A. Cohan, Seyfarth, Shaw, Fairweather & Geraldson, San Francisco, CA, for plaintiffs.

Louise H. Renne, City Atty., Burk E. Delventhal, G. Scott Emblidge, Julia M.C. Friedlander, David Greenburg, Deputy City Attys., San Francisco, CA, for defendant.

OPINION AND ORDER

ORRICK, District Judge.

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") ¶ 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 ¶¶ 4, 5, 27; Conroy Decl. ¶ 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 ¶ 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 ¶ 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 ¶¶ 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 ¶ 43). Each is discussed in turn below.

1. Hip Hop Graffiti

Hip hop graffiti¹ 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 ¶ 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 ¶ 31; Tr. (DB) 12:7-10, 13:1-8).

"Pieces" — short for masterpiece — are the most elaborate type of hip hop graffiti. (SUF ¶ 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 ¶¶ 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 ¶ 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 ¶ 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 ¶ 46). When tagging, members of crews often write their crew tag as well as their individual tag. (SUF ¶ 47). While many crews are local, there are some large crews with members located from San Francisco to Los Angeles and beyond. (SUF ¶ 49). In addition, some crews may specialize in particular targets. (SUF ¶ 50). For example, San Francisco has "yard crews" that specialize in tagging Municipal Railway vehicles in the MUNI yards. (SUF ¶ 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 ¶ 52; Tr. (RL) 84:21-85:10).

c. Characteristics of Hip Hop Graffiti Writers

Hip hop graffiti writers are overwhelmingly male. (SUF ¶ 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 ¶ 36). Writers come from all racial, ethnic and social backgrounds and are highly mobile. (SUF ¶...