(a)
The spread
of graffiti on both public and private buildings, structures, walls,
fences or places causes blight within the city which results in a
deterioration of property and business values for adjacent and surrounding
properties, all to the immediate detriment of the city.
(b)
The power
of graffiti to create fear within the community and blight within
the city is beyond the cost of cleanup or removal, but an immediate
threat to the quality of life and freedom of intimidation which the
residents of the city deserve.
(c)
The city
council finds and determines that graffiti is obnoxious and a public
nuisance which must be abated so as to avoid the detrimental impact
of such graffiti on the city and to prevent the further spread of
graffiti.
(d)
It is
the purpose and intent of the city council, through the adoption of
this article, to provide additional enforcement tools, in addition
to those provided for under state law, to protect public and private
property from acts of vandalism and defacement, including, but not
limited to graffiti on privately and publicly owned walls or fences
which are inimical and destructive of the rights and values of private
property owners as well as the city.
(Ord. No. 901, § 1, 9-13-93)
For the purpose of this article, the following words, terms
and phrases shall have the meanings ascribed to them herein unless
the context clearly indicates otherwise:
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.
means any indelible marker or similar implement with a tip
which, at its broadest width is greater than one-sixteenth ( 1/16)
inch, containing an ink that is not water soluble.
means any unauthorized inscription, word, figure, or design
that is marked, etched, scratched, drawn, or painted on any surface
of any building, structure, or other facility, whether public or private
and regardless of the nature of the material of any such surface.
means an aerosol paint container, a felt tip marker, gum
label, or a paint stick or any etching tool capable of scarring glass,
metal, concrete or wood.
means any sheet of paper, fabric, plastic or other substance
with an adhesive backing which, when placed on a surface is not easily
removable.
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 upon application, leaving a mark at least
one-eighth ( 1/8) inch in width, visible from a distance of 20 feet,
and not water soluble.
(Ord. No. 901, § 1, 9-13-93)
It is unlawful for any person to apply graffiti on any publicly
or privately owned buildings, permanent structures, walls, fences
or places located on publicly or privately owned property within the
city.
(Ord. No. 901, § 1, 9-13-93)
(a)
Generally. It shall be unlawful for any person under the
age of 18 years to have in his or her possession any graffiti implement
while upon public property or upon private property without the consent
of the owner of such private property whose consent was given in advance
and shall be as to the person's presence while in the possession of
a graffiti implement.
(b)
School exception. The foregoing provision shall not apply
while the person is attending, or travelling to or from a school at
which the person is enrolled, if the person is participating in a
class at said school which has, as a written requirement of said class,
the need to use any graffiti implement.
(Ord. No. 901, § 1, 9-13-93)
No person shall have in his or her possession any graffiti implement
while in any public park, playground, swimming pool, public recreational
facility, any public right-of-way in the city, 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
they may be used in planned, adult supervised activities. This section
shall not apply to authorized employees of the City of Cypress, or
authorized employees of any individual, agency, or company under contract
with the city.
(Ord. No. 901, § 1, 9-13-93)
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 graffiti implement to any person under the age of 18 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. 901, § 1, 9-13-93)
Any parent or legal guardian whose child under the age of 18
possesses a graffiti implement shall be personally liable for any
and all costs to any person incurred in connection with the removal
of graffiti caused by said child, or by said graffiti implement, and
for all attorney's fees and court costs included in connection with
the civil prosecution or any claim for damages.
(Ord. No. 901, § 1, 9-13-93)
Every person who owns, conducts, operates or manages a retail
commercial establishment selling graffiti implements, containing anything
other than a solution which can be removed with water after it dries,
shall store or cause such graffiti implements to be stored in an area
viewable by, but not accessible to the public in the regular course
of business without employee assistance, pending legal sale or disposition
of such graffiti implement.
(Ord. No. 901, § 1, 9-13-93)
Any person who displays a graffiti implement in violation of
the provisions of this article shall be personally liable for any
and all costs incurred by any party, in connection with the removal
of graffiti or the repair of any property containing graffiti, caused
by any person who shall use such graffiti implement in violation of
the provisions of the California Penal Code Section 594, and for all
attorney's fees and court costs incurred in connection with the civil
prosecution or any claim for damages.
(Ord. No. 901, § 1, 9-13-93)
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 such property which is defaced with graffiti to remain so defaced
for a period of 48 hours after notice by the city, unless (1) said
person(s) shall demonstrate by preponderance of evidence that they
do not have the financial or physical ability to remove the graffiti;
or (2) 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 five days after notice of same.
(Ord. No. 901, § 1, 9-13-93)
(a)
The
existence of graffiti within the City of Cypress is a public nuisance,
and may be abated according to the provisions and procedures contained
herein.
(b)
The
existence of any surface of a structure, building, or other facility,
whether public or private, on a parcel of land which has been defaced
with graffiti after the removal of more than five times in six months
is a public nuisance, and may be abated by minor modifications thereto,
or to the immediate area surrounding same, according to the provisions
and procedures contained herein as follows:
Said surface or surfaces shall be required to be retrofitted,
at the cost of the property owner of said parcel, or at the cost of
the city at the city's option, with such features or quality as may
be established by the city as necessary to reduce the attractiveness
of the surface for graffiti, or as necessary to prevent more convenient
or efficient removal thereof.
(Ord. No. 901, § 1, 9-13-93)
(a)
Whenever
the city manager, police chief, planning director, public works director/city
engineer or their designated representatives determine that graffiti
is so located on publicly or privately owned structures, buildings,
or other facilities on publicly or privately owned real property within
this city so as to be capable of being viewed by a person utilizing
any public right-of-way in this city, the city manager, police chief,
planning director, public works director/city engineer or their designated
representative, are authorized to provide for the removal of the graffiti
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 of an area more
extensive than where the graffiti is located shall not be authorized,
except where the structure or property is city-owned and the city
manager, police chief, planning director, public works director/city
engineer or their designated representative determines that a more
extensive area is to be repainted or repaired, or where the private
property owner, or other public entity owner agrees to pay for the
costs of repainting or repairing a 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 owner,
and a release and waiver of the city from liability for private or
public property liability damage approved as to form and substance
by the city attorney.
(b)
If
a responsible party fails to remove the graffiti within the time herein
specified, or if the city shall have requested consent to remove or
paint over the graffiti and the responsible party shall have refused
consent for entry on terms acceptable to the city consistent with
the terms of this article, the city may remove the graffiti at the
property owner's expense as a public nuisance under the following
procedures:
(1)
Notice and hearing. The planning director or designee ("hearing officer") shall give not less than 48 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 10 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 who is responsible for the maintenance of 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 also, of a "due process" hearing at which said responsible party shall be entitled to present evidence and argue that his or her property does not contain graffiti. The failure of any person to receive such notice shall not affect the validity of any proceeding herein. 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, or his agent, the hearing officer determines that the property contained graffiti, 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 public works director/city engineer) or such other eradication thereof ("eradication effort") as the public works director/city engineer determines appropriate, and shall provide the responsible party thereafter with an accounting of the costs of such eradication effort, including incidental expenses. The term "incidental expenses" includes but is not limited to the actual expenses and costs of the city in preparation of notices and contracts, inspection of the work, and the cost of printings and mailings required under this article, and any attorney's fees expended in the eradication of the graffiti, through civil action or otherwise. The city attorney shall keep an accounting of attorney's fees and costs and transmit the same to the planning director or designee.
(2)
Eradication effort. Not sooner than the time specified
in the order of the hearing officer, the planning director or designee,
shall implement the eradication order, and shall provide an accounting
to the responsible party of the costs thereof ("eradication accounting").
(3)
Cost hearing. If the responsible party fails to
request a hearing before the hearing officer in the eradication accounting
("cost hearing"), or if requested, and a cost hearing is conducted
after extending due process to the responsible party, and 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 30 days.
(4)
Lien. If all or any portion of the assessed eradication
charges remain unpaid after 30 days, pursuant to the authority created
by law, including Government Codes Section 38773, et seq., such portion
thereof as shall remain unpaid shall constitute and is hereby declared
to constitute a lien on the property which was the subject matter
of the eradication effort. The public works director/city engineer
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 Orange County Recorder's Office.
(5)
Additional remedies. Nothing in this article shall
preclude the abatement of graffiti by the city through civil process
by means of restraining order, preliminary or permanent injunction
or in any other manner provided by law for the abatement of such public
nuisance.
(Ord. No. 901, § 1, 9-13-93)
All encroachment permits issued by the city shall be conditioned
upon the following:
(1)
The
permittee shall apply an anti-graffiti material to the encroaching
object of a type and nature that is acceptable to the public works
director/city engineer;
(2)
The
immediate removal by the permittee of any graffiti;
(3)
The
right of the city to remove graffiti or to paint the encroaching object;
(4)
Providing
city with sufficient matching paint and/or anti-graffiti material
on demand for use in the painting of the encroaching object containing
graffiti.
(Ord. No. 901, § 1, 9-13-93)
In approving tentative or parcel maps, conditional use permits,
variances, or other similar land use entitlements, the city may consider
imposing any or all of the following conditions:
(1)
Use of anti-graffiti material. Developer shall apply an
anti-graffiti material of a type and nature that is acceptable to
the public works director/city engineer to each of the publicly-viewable
surfaces on the improvements to be constructed on the site deemed
by the public works director/city engineer to be likely to attract
graffiti ("graffiti attracting surfaces"); and
(2)
Right of access to remove graffiti. Developer shall grant,
prior to resale of any of the parcels which are within the territory
of said map, the right of entry over and access to such parcels, upon
48 hours posting of notice, by authorized city employees or agents,
to the city for the purpose of removing or "painting over" graffiti
from graffiti attracting surfaces previously designated by the public
works director/city engineer, and the right to remove such graffiti;
and
(3)
Supply with graffiti-removal material. Developer shall,
for a period of two years after the resale of their final lot, provide
the city with sufficient matching paint and/or anti-graffiti material
on demand for use in the painting over or removal of designated graffiti
attracting surfaces; and
(4)
Owner to immediately remove graffiti. Developer shall, either
as part of the conditions, covenants and restrictions, or as separate
covenants recorded against individual lots, prior to resale of same,
covenant, which covenant shall run with the land and be for the benefit
of the city, in a form satisfactory to the city, that the owner of
the lots shall immediately remove any graffiti placed thereon.
(Ord. No. 901, § 1, 9-13-93)
Pursuant to Government Code Section 53069.5, the city council
may, by resolution, establish a reward for information leading to
the identification and arrest and conviction of any person who places
graffiti upon any public or private property in the city. In the event
of damage to any such property, said resolution may require that the
convicted 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 unemancipated minor so convicted.
(Ord. No. 901, § 1, 9-13-93)
In addition to all other penalties under state law which may
be applicable, any violation of this article shall be a misdemeanor
offense punishable by either six months in jail, a one thousand dollar
($1,000.00) fine, or both such fine and imprisonment.
(Ord. No. 901, § 1, 9-13-93)
