[1]
Editor's Note: Prior ordinances codified herein include
portions of Ordinance No. 969.
[Ord. No. 1018, § 2; Ord. No. 1172, § 1.]
(a)
GRAFFITI — As used in this section, "graffiti" includes any
inscription, word, figure, or design that is marked, etched, scratched,
drawn, painted, pasted or otherwise affixed to or, on any surface,
regardless of the nature of the material of that structural component,
to the extent that same was not authorized in advance by the owner
thereof, or, despite advance authorization, is otherwise deemed by
the Council to be a public nuisance.
(b)
AEROSOL PAINT CONTAINER — Means any aerosol container, regardless
of the material from which it is made, which is adapted or made for
the purpose of spraying paint or other substance capable of defacing
property.
(c)
FELT TIP MARKER — Means any indelible marker or similar implement
with a tip which, at its broadest width is greater than one-eighth
inch, containing an ink that is not water-soluble.
(d)
PAINT STICK — Means a device containing any solid form of paint,
chalk, wax, epoxy, or other similar substance capable of being applied
to a surface by pressure, and upon application, leaving a mark at
least one-eighth of an inch in width, visible from a distance of twenty
feet, and not water-soluble.
(e)
PROPERTY — Means, publicly or privately owned lands, building,
fences, parks, dwellings, within the City limits.
(f)
RESPONSIBLE PARTY — Means the owner of the property or who
has primary responsibility for control of property or who has primary
responsibility for the repair or maintenance of property.
[Ord. No. 1018, § 2.]
It is the purpose and intent of the City Council of the City,
through the adoption of this chapter, to provide additional enforcement
tools to protect public and private property from acts of vandalism
and defacement; especially, but not limited to, graffiti on privately
and publicly owned walls, which are inimical and destructive of the
rights and value of private property owners as well as the total community.
It is further the intent of the City Council, through the adoption
of this notice upon all of those who callously disregard the property
rights of others, that the law enforcement agency of the City, the
police department, will strictly enforce the law and severely prosecute
those persons engaging in the defacement of public and private properties
including, but not limited to, requesting the juvenile court system
to impose drivers license suspension on repeat offenders.
[Ord. No. 1018, § 2.]
(a)
Unlawful to apply graffiti. It shall be unlawful for any person to
apply graffiti on any public or privately owned structures located
on public or privately owned real property within the City.
(b)
Possession by minors. It shall be unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement, as defined in § 19-41 Subsections (b), (c) and (d), while upon public property or upon private property without the consent of the owner of such private property whose consent is given in advance and whose consent shall be given as to the person's presence while in the possession of a graffiti implement.
(c)
Possession in designated public places. No person shall have in his
or her possession any graffiti implement while doing any activity
in any public park, playground, swimming pool, recreational facility,
or while loitering in or near an underpass, bridge abutment, storm
drain, and other similar types of infrastructure not normally used
by the public except as may be authorized by the City.
[Ord. No. 1018, § 2.]
(a)
Mandatory juvenile delinquent community service. Any minor determined
to be a ward of the court under Welfare and Institutions Code Section
602 as a result of committing an offense in the City shall be required,
at the City's option, to perform thirty-two hours of community
service, eight which must be served with a parent or legal guardian.
(b)
Penalties for violation. Any and all violations of this chapter shall
be punishable either as an infraction or a misdemeanor, at the discretion
of the City Attorney.
[Ord. No. 1018, § 2.]
Pursuant to Section 53069.5 of the Government Code, the City
does hereby offer a reward of one hundred dollars for information
leading to the arrest and conviction of any person for violation of
Penal Code Section 594 by the use of graffiti, not to exceed one hundred
dollars per incident of graffiti. In the event of multiple contributors
of information, the reward amount shall be divided by the City in
the manner it shall deem appropriate. For the purposes of this section,
diversion of the offending violator to a community service program,
or a plea bargain to a lesser offense, shall constitute a conviction.
(a)
Claims for rewards under this section shall be filed with the City.
Each claim shall:
(1)
Specifically identify the date, location and kind of property
damaged or destroyed.
(2)
Identify by name the person who has convicted, or confessed
to the damage or destruction of the City property.
(3)
Identify the court and the date upon which the conviction occurred
or the place and the date of the confession.
(b)
The person committing the graffiti, and if an unemancipated minor,
then the custodial parent of said minor, shall be liable for reward
paid pursuant to this section.
[Ord. No. 1018, § 1.]
It shall be unlawful for any person, other than a parent or
legal guardian, to sell, exchange, give, loan, or otherwise furnish,
or cause or permit to be exchanged, given, loaned, or otherwise furnished,
any felt tip marker or graffiti stick to any person under the age
of eighteen years without the consent of the parent or other lawfully
designated custodian of the person, which custodial consent shall
be given in advance in writing.
[Ord. No. 1018, § 2; Ord. No. 1172, § 1.]
(a)
Right of City to require removal (self-removal). It is unlawful for
any person who is the owner or who has primary responsibility for
control of property or who has primary responsibility for the repair
or maintenance of property ("responsible party") to permit property
which is defaced with graffiti to remain so defaced for a period of
forty-eight hours after notice of same, unless (1) said person shall
demonstrate by a preponderance of evidence that they do not have the
financial or physical ability to remove the defacing graffiti; or
(2) unless it can be demonstrated that the responsible party has an
active program for the removal of graffiti and has scheduled the removal
of the graffiti as part of that program, in which case it shall be
unlawful to permit such property defaced with graffiti to remain defaced
for a period of seven days after notice of same.
(b)
Declaration of nuisance.
(1)
Graffiti is a nuisance. The existence of graffiti within the
City limits of the City is a public and private nuisance, and may
be abated according to the provisions and procedures herein contained.
(2)
Graffiti attracting surface as a nuisance. The existence of
any surface of a structure on a parcel of land which has been defaced
with graffiti after removal more than five times in twelve months
is a public and private nuisance, and may be abated by minor modifications
thereto, or to the immediate area surrounding same, according to the
provisions and procedures herein contained as follows: Said surface
or surfaces shall be required to be retrofitted, at the cost of the
property owner, of said lot, not to exceed a total cost of five hundred
dollars, or at the cost of the City at the City's option, with
such features or qualities as may be established by the City as necessary
to reduce the attractiveness of the surface for graffiti, or as necessary
to permit more convenient or efficient removal thereof.
(c)
Right of City to remove.
(1)
Whenever the City becomes aware, or is notified and determines
that graffiti is so located on public or privately owned property
viewable from a public or quasi public place within the City, the
City shall be authorized to use public funds for the removal of same,
or for the painting or repairing of same, but shall not authorize
or undertake to provide for the painting or repairing of any more
extensive area than that where the graffiti is located, unless the
City Administrator, or his designee, determines in writing that a
more extensive area is required to be repainted or repaired in order
to avoid an aesthetic disfigurement to the neighborhood or community,
or unless the responsible party agrees to pay for the costs of repaint
or repairing the more extensive area.
(2)
Prior to entering upon private property or property owned by
a public entity other than the City, for the purpose of removal of
graffiti, the City shall attempt to secure the consent of the property
owners, and a release of the City from liability for private or public
property or liability damage. The responsible party may execute and
file with the City a graffiti removal consent form giving the City
authority to, without notice, immediately enter onto the private property
listed to paint over any graffiti that is within public view. Areas
not within public view shall not be entered unless further consent
is given, or an inspection warrant issued.
(3)
If a responsible party fails to remove the offending graffiti
within the time herein specified, or if the City shall have requested
consent to remove or paint over the offending graffiti and the responsible
party shall have refused consent for entry on terms acceptable to
the City consistent with the terms of this section, the City shall
commence abatement and cost recovery proceedings for the removal of
the graffiti according to the following procedure.
a.
The City Administrator, or his or her designee, ("hearing officer") shall give not less than forty-eight hours notice, served in the same manner as summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure (If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Section 6062) to the responsible party or parties who are responsible for the maintenance or a parcel of property containing graffiti ("property"), and, if a different person is the owner of record of the parcel of land on which the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current, then to said owner ("owner") also, of a "due process" hearing at which said responsible party and owner shall be entitled to present evidence and argue that his or her property does not contain graffiti. The determination of the hearing officer after the "due process" hearing shall be final and not appealable. If, after the due process hearing, regardless of the attendance of the responsible party, owner, or their respective agents, the hearing officer determines that the property contains graffiti viewable from a public or quasi-public place, the hearing officer shall give written notice ("eradication order") that, unless the graffiti is removed within five days thereafter, the City shall enter upon the property, cause the removal, painting over (in such color as shall meet with the approval of the hearing officer) or such other eradication thereof ("eradication effort") as the hearing officer determines appropriate, and shall provide the responsible party and owner thereafter with an accounting of the costs of such eradication effort on a "full cost recovery basis."
b.
Eradication effort. Not sooner than the time specified in the
order of the hearing officer, the City Administrator, or his designee,
shall implement the eradication order, and shall provide an accounting
to the responsible party, and as appropriate, the owner, of the costs
thereof ("eradication accounting").
c.
Cost hearing. If the responsible party or owner fails to request
a hearing before the hearing officer on the eradication accounting
("cost of hearing"), or if requested, and a cost hearing is conducted
after extending due process to the responsible party and, as appropriate,
the owner, after such a cost hearing, the hearing officer determines
that all or a portion of the costs are appropriately chargeable to
the eradication effort, the total amount set forth in the eradication
accounting, or such amount thereof determined as appropriate by the
hearing officer, ("assessed eradication charges") shall be due and
payable by the responsible party within thirty days. Any amount of
assessed eradication charges assessed by the hearing officer which
are less than the total amount set forth in the eradication accounting
shall be explained by written letter from the hearing officer to the
City Council members.
d.
Lien. As to such property where the responsible party is the
owner, if all or any portion of the assessed eradication charges remain
unpaid after thirty days, pursuant to the authority created by law,
including Government Codes Section 38773, et seq., shall constitute
and is hereby declared to constitute a lien on the property which
was the subject matter of the eradication effort. The director of
public works shall present a resolution of lien to the City Council,
and upon passage and adoption thereof, shall cause a certified copy
thereof to be recorded with the Stanislaus County Recorder's
Office.
