Note: Prior ordinance history: Ord. No. 2146.
The purpose of this chapter is to help prevent the spread of
graffiti and to establish a program for its removal from public and
private property. The spread of graffiti on both public and private
buildings, structures, or property causes blight within the City,
which results in a deterioration of property and business values for
adjacent and surrounding properties, all to the detriment of the City.
The City Council finds and determines that graffiti is obnoxious and
a public nuisance that must be abated so as to avoid the detrimental
impact of such graffiti on the City and to prevent the further spread
of graffiti. The City Council further finds that the application of
graffiti, as defined herein, is willful misconduct that damages or
destroys property. Government Code Section 53069.3 permits the use
of City funds to remove graffiti from publicly or privately owned
property in the City. The City Council further finds and determines
that graffiti is often used by criminal street gang members in attempts
to mark or claim territory. As a result, graffiti promotes conflict
among different gangs and also between gang members and other members
of the community, thereby creating an immediate danger to public health
and safety.
(2253 § 1, 1993; 2287, 1994; 2732 § 1, 2008; 2802 § 1,
2011)
As used in this chapter, the following terms shall have meanings
as set forth below:
means any sheet of paper, fabric, plastic, or other material
with an adhesive or gummed backing, which when applied or affixed
to any surface either creates a permanent contact or is not easily
removable without the use of solvents.
means any aerosol container, regardless of the material from
which it is made, that is adapted or made for the purpose of spraying
paint or other substances capable of defacing property.
means any sharp or pointed instrument that is capable of
etching or marking glass, plastic, wood, metal, or concrete surfaces
including, but not limited to, picks, scribes, awls, chisels, markers,
and etchers, or any masonry or glass drill bit, carbide drill bit,
glass cutter, grinding stone, etching cream, or acid etching solution.
include, but are not limited to, court costs, attorneys'
fees, costs of removal of the graffiti or other inscribed material,
costs of repair or replacement of defaced property, and the law enforcement
costs incurred by the City and/or any other public agency as authorized
pursuant to Government Code Section 38772(d)(1).
means any broad-tipped marker pen with a tip exceeding three-eighths
of one inch, or any other similar implement containing an ink that
is not water-soluble.
means any unauthorized inscription, word, figure, mark, adhesive
sticker, or design that is written, marked, etched, scratched, drawn,
painted, labeled, pasted, applied, or affixed on any surface of public
or private real or personal property including, but not limited to,
buildings, walls, windows, signs, structures, places, or other surfaces
regardless of the nature of the material of which the surface is composed.
means any implement capable of marking, scarring, damaging,
or defacing any surface to create graffiti including, but not limited
to, aerosol paint containers, felt tip markers, etching tools, paint
sticks or graffiti sticks, adhesive stickers, spray actuators, marking
pens, drill bits, grinding stones, or any other similar implement.
of law are those violations referred to in Government Code
Section 38772(d)(3) and any violation of this chapter.
means any device containing a solid form of paint, chalk,
wax, epoxy, or other similar substance capable of being applied to
a surface by pressure and that, upon application, leaves a visible
mark on the surface at least three-eighths of an inch in width or
is not water soluble.
(also known as a spray tip, nozzle, or button) means an object
or device that is capable of being attached to an aerosol paint container
for the purpose of spraying the substance contained therein.
(2253 § 1, 1993; 2287, 1994; 2732 § 1, 2008; 2802 § 1,
2011)
A.
It is
unlawful for any person to write, mark, etch, draw, label, paste,
affix, paint, chalk, or otherwise apply graffiti on publicly or privately
owned buildings, walls, signs, structures, surfaces, or other property
located within the City.
B.
Any
violation of this chapter is hereby declared to be a public nuisance.
C.
It is
unlawful for any person owning or otherwise in control of any real
or personal property within the City to permit or allow any graffiti
to be placed upon or to remain on any structure or other surface located
on that property if the graffiti is visible from the public right-of-way
or from other public or private property.
(2253 § 1, 1993; 2287, 1994; 2732 § 1, 2008; 2802 § 1,
2011)
A.
It is
unlawful for any person to have in his or her possession any graffiti
implement while in any (1) storm drain or (2) public park, playground,
swimming pool, public recreational facility, or any other similar
type of public facility within the City. This section shall not apply
to any person who possesses such implements while in the course and
scope of their lawful profession, trade, or occupation.
B.
It is unlawful for any person to have in his or her possession any graffiti implement, for the purpose of applying graffiti as defined in Section 8.64.020 of this chapter, while on any (1) highway, street, alleyway, or sidewalk, (2) in any public right-of-way, or (3) in or upon an underpass, overpass, bridge, abutment, or other similar type of infrastructure within the City.
C.
It is unlawful for any minor (person under the age of 18 years) to have in his or her possession any graffiti implement while in or upon any highway, public sidewalk, street, alleyway, public right-of-way, public park, playground, swimming pool, public recreational facility, underpass, overpass, bridge, abutment, storm drain, other similar infrastructure or on private property within the City without the minor having in his or her possession the written consent of the real property owner or lessee, whether or not the minor is in a vehicle. The written consent of the property owner or lessee shall include the contact information of the owner or lessee, as appropriate, including, but not limited to, a current phone number and address. This subsection shall not apply to any minor who is (1) accompanied by a parent or guardian having custody and control of the minor, or (2) under the immediate supervision of a teacher or instructor employed by a public school, private school, or other similar educational facility licensed by either the State of California or another public entity. Notwithstanding the foregoing, an emancipated minor shall be subject to the requirements of subsection A above rather than this subsection.
D.
It is
unlawful for any person, other than the parent or guardian having
custody and control of the minor, to sell, exchange, give, loan, or
otherwise furnish, or cause or permit to be sold, exchanged, given,
loaned, or otherwise furnished, any graffiti implement to any person
under the age of 18 years without first obtaining the written consent
of the parent or guardian having custody and control of the minor.
The prior written consent of the parent or guardian of the minor shall
include the contact information of the parent or guardian, including,
but not limited to, a current phone number and address.
E.
Except
as otherwise authorized in this section, the possession of any graffiti
implement while in any public park, playground, swimming pool, or
public recreational facility while on a public sidewalk, street, alleyway,
or in any public right-of-way or while in or upon an underpass, overpass,
bridge, abutment, storm drain, or other similar type of infrastructure
within the City is hereby declared to be a public nuisance.
(2253 § 1, 1993; 2287, 1994; 2732 § 1, 2008; 2802 § 1,
2011)
Graffiti may be removed by any of the following methods:
A.
Any
person applying graffiti within the City shall have the duty to remove
that graffiti within 24 hours after notice to such person by the City
or the public or private owner of the property involved. Failure of
any person to so remove graffiti shall constitute an additional violation
of this chapter. Where graffiti is applied by an unemancipated minor,
the parent(s) or legal guardian(s) having custody and control of the
minor shall be responsible for such removal or for the payment thereof.
B.
When
the City Manager or his or her designated representative determines
that graffiti is so located on publicly or privately owned real or
personal property within the City so as to be capable of being viewed
by a person utilizing any public right-of-way or from other City property
in the City, the City Manager or his or her designated representative
is authorized to provide for the removal of the graffiti, or, if removal
cannot be cost effectively accomplished, the repair or replacement
of the property defaced, solely at the City's expense, without reimbursement
from the property owner upon whose property the graffiti has been
applied, upon the following conditions:
1.
In
removing the graffiti, the painting or repair/replacement of an area
more extensive than where the graffiti is located shall not be authorized,
except where the property is City-owned and the City Manager or his
or her designee determines that a more extensive area is to be repainted
or repaired/replaced, or where the private property owner or other
public entity property owner agrees to pay for the costs of repainting
or repairing/replacing a more extensive area.
2.
Where
the property is owned by a public entity other than the City, the
removal of the graffiti or repair/replacement of the property may
be authorized only after securing the consent of the public entity
having jurisdiction over the property, and release by that public
entity of the City from liability. The public entity other than the
City may consent in advance to City entry onto property, which the
public entity other than the City has control over, for graffiti removal
or repair/ replacement purposes. The City may make forms for such
consent available.
3.
Where
the property is privately owned, the removal of graffiti or repair/
replacement of the property by City forces or by a private contractor
under direction of the City may be authorized only after securing
the written consent of the owner or possessor, and release by that
owner or possessor of the City from liability. Private property owners
and possessors in the City may consent in advance to entry onto private
property by City forces, or by a private contractor under direction
of the City, for graffiti removal or repair/replacement purposes.
The City may make forms for such consent available.
C.
If a
private property owner's consent cannot be obtained and/or the owner
has not removed the graffiti within five days after notice is given
as set forth below, then the City may remove graffiti that is located
on privately-owned property located within the City, and which graffiti
can be viewed by a person utilizing any public right-of-way or from
other City property in the City, at the owner's expense as a public
nuisance pursuant to the following options:
1.
The
City Manager or his or her designated representative shall cause written
notice to be served upon the owner of the affected premises, as such
owner's name and address appears on the last equalized assessment
roll or the supplemental roll, whichever is more current, by depositing
the notice in the United States Postal Service enclosed in a sealed
envelope with first class postage thereon fully prepaid. The mailed
notice shall be certified and addressed to the owner as stated above,
and if there is no known address, then in care of the property address.
Service shall be complete at the time of deposit in the United States
Postal Service. The failure of any person to receive such notice shall
not affect the validity of any proceeding hereunder. The owner shall
have five days after the date of service of the notice to remove the
graffiti, or be subject to City removal of the graffiti and assessment
of the costs of such removal as a lien on the subject property.
2.
The
notice shall be on City letterhead in substantially the following
form:
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NOTICE OF INTENT TO REMOVE GRAFFITI
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NOTICE IS HEREBY GIVEN that you are required at your expense
to remove or paint over the graffiti located on the property commonly
known as (address), Garden Grove, California, which is visible to
public view, within five days after the date of this notice. The graffiti
is visible to public view and therefore constitutes a public nuisance.
If you fail to comply with this order, City employees or private City
contractors will enter upon your property and abate the public nuisance
by the removal or painting over of the graffiti. The costs of the
abatement by the City employees or its private contractors, if not
paid, will be assessed upon your property, and such costs will constitute
a lien upon the land until paid.
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All persons having any objections to, or interest in, said matters
are hereby notified to submit any objections to the City Manager or
his or her designated representative within five days from the date
of this notice.
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At the conclusion of this five day period, the City may proceed
with the abatement of the graffiti on your property at your expense
without further notice.
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3.
Service
of the notice by the City Manager or his or her designated representative
shall be made on the day the notice is dated and by affidavit, the
original of which shall be filed with the City Clerk.
4.
If
any objections are submitted to the City Manager within five days
after the date appearing on the notice of intent to remove graffiti,
the City Manager or his or her designee shall hold a hearing on the
objections. If the City Manager or his or her designee overrules the
objections, the owner shall have five days from the date of that decision
to remove the graffiti. The owner may appeal the decision to the Neighborhood
Improvement and Conservation Commission. The Commission shall hold
a hearing on the appeal as soon as reasonably practicable. Its decision
shall be final.
5.
If
no objections are submitted as set forth in subdivision 4 of this
subsection, or if the objections are overruled following a hearing,
and if the owner fails to remove or fails to cause the graffiti to
be removed by the designated date, or such continued date thereafter
as the City Manager or his or her designated representative approves,
then the City Manager or his or her designated representative shall
cause the graffiti to be abated by City forces or private contract,
and the City or its private contractor is expressly authorized to
enter upon the premises for such purpose.
6.
Should the City Manager or his or her designated representative be required to abate the graffiti as set forth in subdivision 5 of this subsection, he or she shall thereafter follow the procedures set forth in subsection B or C of Section 8.64.070 of this chapter to seek reimbursement for all abatement and related administrative costs, or to place a lien against the property or special assessment against the land.
(2253 § 1, 1993; 2287, 1994; 2732 § 1, 2008; 2802 § 1,
2011)
A.
Pursuant
to Government Code Section 53069.5, the City Council may, by resolution,
establish a reward for information leading to the identification,
apprehension, or conviction of any person who places graffiti upon
any public or private property in the City. In the event of damage
to public property, the resolution may require that the offender reimburse
the City for any reward paid, and may place responsibility for reimbursement
of such reward upon the parent(s) or legal guardian(s) of any offender
who is an unemancipated minor.
B.
Any reward issued pursuant to subsection A of this section may, in the discretion of the City Manager or his or her designee, be paid from City funds. In the event any reward is paid pursuant to subsection A, it shall not relieve the convicted offender and/or the parent(s) or legal guardian(s) of any unemancipated minor so convicted from the obligation to reimburse the City for any reward paid.
(2253 § 1, 1993; 2287, 1994; 2732 § 1, 2008; 2802 § 1,
2011)
A.
Minor
and parental financial responsibility for graffiti violations of law.
Pursuant to Government Code Section 38772, the City Council makes
the expense of summary abatement of graffiti violations of law committed
by a minor: (1) a personal obligation of both the minor causing the
graffiti nuisance and the parent(s) or legal guardian(s) having custody
and control of the minor; and (2) a lien against the property of the
minor or a lien against the property of the parent(s) or legal guardian(s)
having custody and control of the minor. Pursuant to Government Code
Section 38772(c), the County Probation officer shall report the names
and addresses of the parent(s) or legal guardian(s) having custody
and control of a minor responsible for a violation of this chapter
to the City Clerk.
B.
Lien
assessment procedure. Pursuant to Government Code Section 38772, 38773,
38773.1, 38773.2, 38773.5, 38773.6, and/or 38773.7, the City shall
be legally entitled to recover and collect abatement and related administrative
costs incurred in the summary abatement of graffiti nuisances from
the property owner maintaining the nuisance as determined by the last
equalized assessment roll or the supplemental roll, whichever is more
current, and/or the minor or other person creating, causing, or committing
the nuisance. The parent(s) or guardian(s) having custody and control
of a minor shall be jointly and severally liable with the minor. (Hereinafter,
the property owner maintaining the nuisance, as determined by the
last equalized assessment roll or the supplemental roll, whichever
is more current, the minor or other person creating, causing, or committing
the nuisance and the parent(s) or guardian(s) having custody and control
of a minor shall be jointly referred to as the "Responsible Party.")
1.
Notice
of proposed lien assessment. Should the City Manager or his or her
designee be required to abate any graffiti as set forth in this chapter,
he or she shall thereafter prepare a statement of all abatement and
related administrative costs to determine the actual costs of abatement.
The statement of abatement and administrative costs shall be sent
to the responsible party via United States Postal Service, certified
mail, postage thereon fully prepaid. Unless appealed as set forth
below, the responsible party shall pay to the City the full costs
of abatement within 30 days from the mailing of said notice.
a.
If the applicable responsible party desires to appeal the assessment,
the party may do so by requesting an informal hearing before the City
Manager or his or her designee in writing within 10 calendar days
from mailing of the statement of abatement and administrative costs.
Following the informal hearing, the City Manager or his or her designee
shall then render a final decision on the assessment, in writing,
within five days, and mail the same by first class mail, postage prepaid,
to the responsible party.
b.
The affected responsible party shall then have 10 days from the date
of mailing to appeal the City Manager's decision to the City Council.
The appeal shall be in writing.
c.
The proposed assessment, if not paid in full, shall be calendared
for approval by the City Council, whether an appeal has been filed
or not.
d.
Notice of the date and time of the City Council meeting for which
the proposed assessment has been calendared for approval and/or appeal
shall be sent to the Responsible Party in the United States Postal
Service via first-class mail, postage thereon fully prepaid.
e.
The failure of any responsible party to receive any notice provided
pursuant to this chapter shall not affect the validity of any proceeding
in this chapter.
2.
Adoption
and recording of lien assessment. The City Council shall have the
authority to adopt a resolution confirming the lien assessment, which,
following adoption, shall be recorded by the City Clerk in the County
Recorder's Office in which the parcel of land is located, pursuant
to Government Code Sections 38773.1(c), 38773.2(c), and/or 38773.6,
after the notice of lien has been served on the responsible party.
From date of recording, the lien shall have force, effect, and priority
of a judgment lien.
3.
Contents
of the resolution confirming lien assessment. Pursuant to Government
Code Sections 38773.1(c)(1) and/or 38773.2(d), the resolution confirming
the abatement lien shall specify the amount of the lien; the name
of the agency on whose behalf the lien is imposed; the date of the
abatement order; the street address, legal description, and Assessor's
parcel number; and the name and address of the recorded owner of the
parcel.
4.
Service
of a notice of lien.
a.
Following the adoption of a resolution by the City Council confirming
the imposition of a lien upon the responsible party's property, and
prior to the recordation of the lien, the City Manager or his or her
designee shall cause to be served a notice of lien upon the responsible
party. The notice of lien for purposes of this chapter shall be in
substantially the following form:
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NOTICE OF LIEN
(Claim of the City of Garden Grove)
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Pursuant to Government Code Sections 38772, 38773, 38773.1, 38773.2, 38773.5, 38773.6, and/or 38773.7 and the authority of Chapter 8.64 of the Garden Grove Municipal Code, the City Manager or the City of Garden Grove did on or about the day of (date), (year), cause the painting over or removal of graffiti at the premises hereinafter described in the (date), (year), order to abate a public nuisance on said real property; and the City Council of the City of Garden Grove did on the (day) of (month), (year), assess the cost of such abatement upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that the City of Garden Grove does hereby claim a lien for such costs of abatement in the amount of the assessment, to wit: the sum of (amount) dollars; and the same shall be a lien upon said real property until the same has been paid in full and discharged of record.
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The real property hereinbefore mentioned, and upon which a lien
is claimed, is that certain parcel of land laying and being in the
City of Garden Grove, County of Orange, State of California, and particularly
described as follows:
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(Street address, legal description, and Assessor's parcel number)
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The recorded owner of the real property hereinbefore mentioned
is (name) and (address of the recorded owner)
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DATED this (day) day of (month), (year)
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City of Garden Grove, California
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b.
The notice of lien shall be served on the responsible party in the same manner as a 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 person to be served, after diligent search, cannot be
found, the notice of lien may be served by posting a copy of the notice
upon the property owned by the responsible party, in a conspicuous
place, for a period of 10 days. The notice shall also be published,
pursuant to Government Code Section 6062, in a newspaper of general
circulation that is published in the county in which the property
is located. The period of notice commences upon the first day of publication,
and terminates at the end of the tenth day, including therein the
first day. Publication shall be made on each day on which the newspaper
is published during that period.
C.
Alternate
procedure/special assessment against land. As an alternate to the
lien abatement procedure, the City Council also establishes the following
nuisance abatement procedure, in accordance with Government Code Section
38773.6, to make the cost of abatement a special assessment against
real property owned by a responsible party.
To establish such an abatement special assessment against land, the same procedural steps as set forth in subsections (B)(1) through (B)(4) of this section and the notice requirements of Government Code Section 38773.5, as such section may be periodically amended, shall be followed, except that in any required notices and/or documents the term "lien" shall be replaced with the term "special assessment." The assessment against the land shall be collected at the same time and in the same manner as municipal taxes.
D.
Misdemeanor offense. In addition to any administrative, civil, or other fines and/or penalties provided under this Code and/or state law, any violation of this chapter shall be a misdemeanor offense. Notwithstanding any other provision of this Code to the contrary, any person, firm, or corporation convicted of violating Section 8.64.030(A), 8.64.040(A) or 8.64.040(B) of this chapter shall be guilty of a misdemeanor, and punished by a fine of not more than $1,000.00 or by imprisonment in the county jail for a period of not more than six months, or by both such fine and imprisonment, and such violations shall not be subject to reduction or punishment as an infraction. All other violations of this chapter shall be punished in accordance with Section 1.04.010 of this Code.
E.
Civil
liability of parents. In addition to pursuing administrative fines
and/or penalties and/or criminal charges for violations of this chapter,
the City Attorney may: (1) file civil complaints against the parent(s)
or legal guardian(s) of a minor who defaces public or private property;
and (2) seek recovery for the property damage, cost of graffiti removal,
abatement expenses, law enforcement investigative costs, as well as
the City Attorney's fees and costs, up to the amount authorized and
periodically adjusted pursuant to Civil Code Section 1714.1(a)—(d)
for each tort of the minor. Pursuant to that Section, any act of willful
misconduct of a minor that results in the defacement of property in
violation of this chapter is imputed to the parent(s) or guardian(s)
having custody and control of the minor for all purposes of civil
damages, including court costs and attorneys' fees, and the parent(s)
or guardian(s) having custody and control is jointly and severally
liable with the minor for any damages resulting from the willful misconduct
of the minor, not to exceed the amount specified above.
F.
Recovery
of attorneys' fees. Pursuant to Government Code Section 38773.5(b),
the City may recover attorneys' fees in any action, administrative
proceeding, or special proceeding to abate a violation of this chapter,
as such violation constitutes a public nuisance. The recovery of attorneys'
fees shall be by the prevailing party, and limited to those individual
actions or proceedings in which the City elects, at the initiation
of that individual action or proceeding, to seek recovery of its own
attorneys' fees. In no action, administrative proceeding, or special
proceeding shall an award of attorneys' fees to the prevailing party
exceed the amount of reasonable attorneys' fees incurred by the City
in the action or proceeding.
G.
Treble
damages. Pursuant to Government Code Section 38773.7, the City may
upon entry of a second or subsequent civil or criminal judgment within
a two-year period finding that an owner of property or a person described
in paragraph (3) of subdivision (d) of Section 38772 of the Government
Code is responsible for a condition that may be abated in accordance
with this chapter, except for conditions abated pursuant to Section
17980 of the Health and Safety Code, seek the court to order that
person to pay treble the costs of the abatement.
H.
Alternate
actions. Nothing in this chapter shall be deemed to prevent the City
from commencing an administrative, civil, and/or criminal proceeding
to abate a public nuisance or any violation of this chapter, or from
pursuing any other means available to it under provisions of applicable
ordinances or state law to correct violations, hazards, or deficiencies
in real property in addition to or as alternatives to the proceedings
set forth herein.
(2253 § 1, 1993; 2287, 1994; 2340 § 1, 1995; 2732 § 1,
2008; 2802 § 1, 2011)
