[1]
Editor's note: Prior ordinance history: Ords.
2343, 2721, 4702, 4994, and 5279.
The purpose of this chapter is to
provide for the prompt abatement of graffiti from public and private
properties and to provide for methods of controlling the sale to and
unauthorized use of graffiti implements by minors. Graffiti, when
left unabated, reduces property values, encourages blight, adversely
affects the city's image and business development, creates concern
for the quality of life of the city's citizens, and frequently becomes
a forum for gang-related, potentially criminal activities. In order
to assist city personnel in addressing graffiti and penalizing those
persons who disregard the property rights of others, the city council
deems it necessary and appropriate to regulate the use and possession
of graffiti implements and the application of graffiti, and to provide
for the abatement of graffiti. It is the city council's intent that
this chapter further serve as notice to the community that the city
will strictly enforce the law to its maximum extent and prosecute
those persons engaging in the defacement of public and private property.
This chapter is intended to be cumulative
with and in addition to other provisions of this code and state law,
including, but not limited to, Government Code Sections 38771 through
38773.7 and 53069.3, and Penal Code Sections 594, 594.1, and 640.5
through 640.8, and other remedies available at law to combat the effects
of graffiti and the defacement of public and private property.
(Ord. 6729, 10/4/2023)
means any aerosol container which is adapted or made for
the purpose of spraying paint or other substances capable of defacing
property.
means any indelible marker or similar implement with a tip
which at its broadest width is three-eighth-inch or greater, containing
an ink that is not water-soluble.
means any tool or instrument designed or intended to cut,
carve or scratch into glass, metal, wood, or other surfaces.
means any caustic cream, gel, liquid, or solution capable,
by means of a chemical action, of defacing, damaging, or destroying
hard surfaces in a manner similar to acid.
means a person appointed by the director of development services
to assist in the implementation and enforcement of this chapter.
means any implement capable of marking a surface to create
graffiti, including, without limitation, any aerosol spray can, spray
actuator, etching cream, paint stick, broad tip marker, carving tool,
or other implements capable of inscribing, marking, etching, pasting,
or otherwise placing words, figures, or designs on public or private
property.
means any inscription, word, figure, or design that is inscribed,
marked, etched, pasted, or otherwise placed on any property, building,
structure, or surface, and is visible to the public, without the prior
approval of the owner or person in lawful possession or control of
the property, building, structure, or surface.
means a person under 18 years of age.
means a 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
of an inch in width, visible from a distance of 20 feet, and not water-soluble.
means real or personal property, whether publicly or privately
owned, within the city, and includes buildings, structures, and surfaces
within such property.
means any person or entity who is the owner or who has primary
responsibility for the management, repair, or maintenance of the property,
building, structure, or surface.
means an object, such as a spray tip, nozzle, or button,
which is capable of being attached to an aerosol spray can for the
purpose of spraying the substance contained therein.
means the exposed area of any object, including, but not
limited to, walls, fences, sidewalks, curbs, street lamp poles, utility
poles, transformers, trees and vegetation, signs, and/or trash receptacles.
(Ord. 6729, 10/4/2023)
It is hereby declared that graffiti
is obnoxious and a public and private nuisance, and is subject to
abatement and punishment as defined in this code and state law.
(Ord. 6729, 10/4/2023)
It is unlawful for any minor to possess
any graffiti implement for the purpose of defacing private or public
property without the consent of the responsible person. Any law enforcement
officer who observes a minor use a graffiti implement to commit graffiti
may take immediate possession of the graffiti implement.
This section shall not apply if such
minor is in possession of a graffiti implement in order to perform
a task as directed by the minor's parent, guardian, instructor or
employer, and if that task would not be a violation of this chapter
if conducted by an adult.
(Ord. 6729, 10/4/2023)
It is unlawful for any person to
sell, give, or otherwise furnish any aerosol spray can or etching
cream to any minor without the consent of the minor's parent or legal
guardian. Evidence that a person, his or her employee, or agent demanded
and was shown bona fide evidence by the minor representing that such
minor is of the age of majority, and that such person acted upon such
evidence of age of majority in the transaction or sale, is a defense
to any criminal prosecution.
[Ord. 6729, 10/4/2023]
As per Penal Code Section 594.1(c),
all retail establishments which offer for sale to the public paint
in aerosol spray cans or etching creams shall post in a conspicuous
place a sign stating that any person who maliciously defaces real
or personal property with etching cream or paint is guilty of vandalism.
(Ord. 6729, 10/4/2023)
A.
It is unlawful for any person to inscribe,
mark, etch, apply, or otherwise place any graffiti upon any publicly
or privately owned property within the city.
B.
It is unlawful for any person to possess
any graffiti implement for the purpose of inscribing, marking, etching,
applying, or otherwise placing any graffiti upon any publicly or privately
owned property within the city.
(Ord. 6729, 10/4/2023)
A.
Graffiti on any property shall be abated
by the responsible person no later than 72 hours after notice of the
existence of the graffiti.
B.
"Notice" for purpose of Section 10.53.070 and this section may be constructive notice to the responsible person or notification by the city to the responsible person of the existence of the graffiti. Constructive notice to the responsible person shall be effected when, based on all of the relevant facts and circumstances, a reasonable person would know of the existence of the graffiti. Notification by the city to the responsible person shall be effected upon either of the following: (1) the city's posting of a written notice on the property in a reasonably visible location stating the existence of the graffiti and that such graffiti must be removed within 72 hours; or (2) the city's making direct contact with the responsible person or their agent, employee, or representative and informing such person of the existence of the graffiti and that such graffiti must be removed within 72 hours.
C.
Graffiti shall be considered "abated" for
purposes of this section when the graffiti is removed or has been
covered by paint or similar material that is substantially the same
shade or color and texture to the area upon which the graffiti was
placed.
(Ord. 6729, 10/4/2023)
Whenever the city becomes aware,
or is notified and determines, that graffiti is so located on property
and is visible to the public, the city shall be authorized to use
public funds for the removal of the graffiti, or for the painting
or repairing of the graffiti. The city shall not authorize or undertake
to provide for the painting or repair of any more extensive area than
that where the graffiti is located, unless the director of development
services, or their designee, determines that a more extensive area
is reasonably necessary to be repainted or repaired to avoid an aesthetic
disfigurement to the surrounding property, neighborhood, or community.
(Ord. 6729, 10/4/2023)
A.
Graffiti located on property owned by the
city may be immediately removed and abated by the graffiti coordinator
by any reasonable means.
B.
Graffiti located on privately owned property
or on property owned by a public entity other than the city may be
removed and abated by the city if the responsible person or other
public entity consents to such abatement, agrees to reimburse the
city for the costs of the abatement incurred by the city, and executes
and delivers a waiver and release to the benefit of the city in a
form approved by the city attorney. Where these conditions have been
satisfied, the graffiti may be removed and abated by the graffiti
coordinator by any reasonable means.
C.
If graffiti located on non-city property is not removed and abated within the time periods provided in Section 10.53.080 and the graffiti cannot be removed or abated by the city pursuant to subsection B of this section, the city may utilize the procedures set forth in Chapter 2.52, in addition to any other available remedies, to achieve compliance.
(Ord. 6729, 10/4/2023)
Violation of any provision of this
chapter may be charged as an administrative citation, infraction,
or misdemeanor, at the discretion of the city attorney.
(Ord. 6729, 10/4/2023)
Unless otherwise expressly provided,
the remedies, procedures and penalties provided by this chapter are
cumulative to each other and to any others available under state law
or other city ordinances.
(Ord. 6729, 10/4/2023)
A.
Any person or entity violating any provision
of this chapter or failing to comply with any of its requirements
shall be deemed guilty of a separate offense for each and every day
or any portion thereof during which any violation of this chapter
is committed, continued, or permitted by such person or entity and
shall be deemed punishable therefor as provided herein.
B.
If a minor is personally unable to pay
any fine or restitution levied for violating this chapter, each parent
or legal guardian shall be personally liable for the payment of the
fine or restitution for any acts of the minor.
C.
In addition to any other remedy provided
herein, each parent or legal guardian shall also be personally liable
for any and all costs to any person or business incurred in connection
with the removal of graffiti caused by that parent's or guardian's
minor child, and for all law enforcement costs, city staff costs,
attorneys' fees and court costs incurred in connection with the civil
prosecution of any claim for damages or reimbursement in accordance
with California Civil Code Section 1714.1.
(Ord. 6729, 10/4/2023)
Upon entry of a second or subsequent
civil or criminal judgment within a two-year period finding that any
property owner or minor is responsible for a condition to be abated
pursuant to this chapter, the court may order such offender to pay
treble the costs of the corresponding abatement. This section does
not apply to conditions abated pursuant to Health and Safety Code
Section 17980.
(Ord. 6729, 10/4/2023)
A.
Any person who is found guilty of violating Section 10.53.070(A) shall pay restitution to the property owner, in addition to authorized penalties to the city. If the violator is a minor, the parent or guardian shall be responsible for payment of restitution.
B.
The city may, as permitted by state law, file a lien to collect abatement and related administrative costs incurred in the abatement of any violation of Section 10.53.070(A). The city may record this lien on real property belonging to the person found guilty of violating Section 10.53.070(A), or if the person is a minor, on real property owned by the parent or guardian having custody and control of the minor. This lien may only be filed against the person who is found guilty of violating Section 10.53.070(A), or if the individual is a minor, the parent or guardian having custody and control of the individual.
C.
Prior to recording a graffiti nuisance abatement lien, the city shall serve notice on the person who violated Section 10.53.070(A), or if the person is a minor, the city shall serve notice on the parent or guardian having custody and control of the minor. The notice shall be served in the same manner as a summons in a civil action. If the parent or guardian or other person cannot be found after diligent search, the notice may be served by posting a copy of the notice upon the property owned by the parent or guardian or other person, in a conspicuous place, for a period of 10 calendar 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 notice shall include an itemized description of the abatement and related administrative costs, the date of the abatement order, a description of the lien process, and the facts supporting the lien on the property.
D.
The graffiti nuisance abatement lien shall
be recorded in the county recorder's office in the county in which
the parcel of land is located. From the date of recording, the lien
shall have the force, effect, and priority of a judgment lien.
E.
The graffiti nuisance abatement lien shall
specify the amount of the lien; that it is recorded on behalf of the
city; the date of the abatement order; the street address, legal description
and assessor's parcel number of the parcel on which the lien is imposed;
and the name and address of the recorded owner of the parcel.
F.
If the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection D, above, shall be recorded by the city.
G.
The graffiti nuisance abatement lien authorized
by this section may be satisfied through foreclosure in an action
brought by the city.
H.
The city may recover any costs incurred
regarding the processing and recording of the lien and providing notice
to the property owner as part of its foreclosure action to enforce
the lien. As used in this chapter, "abatement and related administrative
costs" include, but are not limited to, court costs, attorneys' fees,
costs of removal of the graffiti, costs of repair and replacement
of defaced property, and the law enforcement costs incurred by the
city in identifying and apprehending the minor or other person. Attorneys'
fees may be awarded to the prevailing party in any litigation initiated
under this section.
I.
As an alternative to obtaining a graffiti
nuisance abatement lien as described above, and as permitted by state
law, the city may make the abatement and related administrative costs
a special assessment against a parcel of land owned by the minor or
by the parent or guardian having custody and control of the minor.
The special assessment shall be collected as provided for in Government
Code Section 38773.6.
(Ord. 6729, 10/4/2023)
The provisions of this chapter are
hereby declared to be severable. If any provision, clause, word, sentence,
or paragraph of this chapter or the application thereof to any person,
establishment, or circumstances shall be held invalid, such invalidity
shall not affect the other provisions or application of this chapter.
(Ord. 6729, 10/4/2023)
