The purpose of this legislation is to provide programs for removal
of graffiti from public and private property within the City and to
establish regulations designed to prevent and control the spread of
graffiti in Los Banos. The City Council finds and determines that
the increase of graffiti on both public and private buildings, structures,
and in other places, creates a condition of blight within the City
which can result in the deterioration of property values, business
opportunities, and enjoyment of life for persons using adjacent and
surrounding properties. The Council further finds and determines that
graffiti is inconsistent with the City's property maintenance
goals, crime prevention programs, and aesthetic standards, and, unless
graffiti is quickly removed from public and private properties, other
properties soon become the targets of graffiti.
(§ 2, Ord. 1059, eff. December 7, 2007)
As used in this section:
means any inscription, word, figure, or design that is marked,
etched, scratched, drawn, sprayed, painted, pasted or otherwise affixed
to, or on, any surface to the extent that same was unauthorized by
the owner thereof, or, despite authorization, is otherwise deemed
by the City Council to be a public nuisance.
means real or personal property, whether publicly or privately
owned, within the City.
means any can, bottle, spray device or other mechanism designed
to propel liquid which contains ink, paint, dye or other similar substance
which is expelled under pressure, either through the use of aerosol
devices, pumps or similar propulsion devices.
means any broad-tipped marker pen with a tip of one-quarter
(1/4″) inch or greater in width.
means any device containing a solid form of paint, chalk,
wax, epoxy, or other similar substance capable of being applied to
a surface and upon application leaving a mark upon property of at
least one-quarter (1/4″) inch or greater in width.
means a pressurized container, ink marker or a paint stick.
means any person who is the owner of property, or who has
primary responsibility for control over property, or who has primary
responsibility for the repair and maintenance of property.
(§ 2, Ord. 1059, eff. December 7, 2007)
The City Council hereby declares that graffiti is a public nuisance
and is subject to punishment as prescribed in this Code.
(§ 2, Ord. 1059, eff. December 7, 2007)
(a)
It is unlawful for any person to apply graffiti upon any property
within the City.
(b)
It is unlawful for any person owning or otherwise being in control
of any property within the City to maintain, permit or allow any graffiti
to remain upon such property when the graffiti is visible from the
street or other public or private property.
(§ 2, Ord. 1059, eff. December 7, 2007)
It is unlawful for any person to assist, aid, abet or encourage
another to violate the provisions of this article by words or overt
act.
(§ 2, Ord. 1059, eff. December 7, 2007)
(a)
Each penalty imposed for a violation of this article shall be: (1)
a penalty of One Hundred Twenty-Five and No/100ths ($125.00) Dollars
for a first violation; (2) a penalty of Two Hundred Fifty and No/100ths
($250.00) Dollars for a second violation within a year; (3) a penalty
of Five Hundred and No/100ths ($500.00) Dollars for each additional
violation within one year.
(b)
Where there has been a conviction, or guilty or nolo contendere plea
of a violation of this article, the court shall, in addition to any
penalty imposed pursuant to this article, and at the City's
option, order the defendant to complete community service, including
graffiti removal service, of not less than six hours and no more than
48 hours for a first conviction. Upon the second and subsequent conviction,
a person shall be required, at the City's option, to perform
community service, including graffiti removal service of not less
than 48 hours and no more than 96 hours. A defendant shall be ordered
to complete community service during a time other than during his
or her hours of school attendance or employment.
(c)
Where there has been a conviction, or guilty or nolo contendere plea
of a violation of this article, the court shall, in addition to any
punishment imposed pursuant to this article, and at the victim's
option, order the defendant to perform the necessary labor to clean
up, repair, or replace the property damaged by that person.
(d)
Where there has been a conviction, or guilty or nolo contendere plea
of a violation of this article, the court shall, in addition to any
punishment imposed pursuant to this chapter, and at the victim's
option, and as restitution, order the defendant to pay for any related
costs incurred for the clean up, repair, or replacement of the property
damaged by that person.
(e)
If a minor is personally unable to pay any penalty or restitution
levied for violating any provision of this section, the parent or
legal guardian of the minor shall be liable for payment of the penalty
and restitution.
(§ 2, Ord. 1059, eff. December 7, 2007)
(a)
Right of City to require removal by responsible party. It is unlawful
for any responsible party to permit property that has been defaced
with graffiti to remain so defaced for a period of three calendar
days after having been given notice of the violation of this section.
(b)
Consent to enter; abatement upon failure to obtain consent.
(1)
Securing responsible party's consent. 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 responsible party.
(2)
Failure to obtain responsible party's consent. If a responsible
party fails to remove the offending graffiti within the time herein
specified or if the responsible party has refused to give consent
to the City for entry on terms acceptable to the City consistent with
the provisions of this section, the City may commence abatement of
graffiti nuisance and recovery of expense of abatement proceedings
for the removal of the graffiti according to the procedures herein.
(§ 2, Ord. 1059, eff. December 7, 2007)
(a)
Abatement of graffiti nuisance and recovery of expense of abatement
proceedings commenced against a responsible party shall be according
to the following procedure:
(1)
If a hearing is requested by the responsible party, the City Manager,
or designee ("Hearing Officer"), shall give the responsible
party not less than 48 hours' notice of a hearing to be held
by the Hearing Officer for the purpose of showing cause why the public
nuisance should not be abated by the City. Following notice, the hearing
shall be held by the Hearing Officer at the time, date and place designated
and at such hearing the responsible party may be heard and provided
with the opportunity to show cause why the nuisance should not be
abated. Following the hearing, the Hearing Officer shall determine
whether abatement of the nuisance shall be commenced.
(2)
If the Hearing Officer determines that abatement of the nuisance
shall be commenced, the City may enter upon the property and cause
such nuisance to be removed in the manner determined most appropriate
by the City.
(3)
If a hearing has not been requested by the responsible party, the
City may enter upon the property and cause such nuisance to be removed
in the manner determined most appropriate by the City.
(4)
Upon removal of the public nuisance, the City may provide an accounting
of the expense of abatement along with a demand for payment to the
responsible party.
(5)
If payment is not made within 30 days from the date of the accounting
and demand for payment, the payment shall be deemed delinquent and
shall be subject to a penalty assessment of One Hundred and No/100ths
($100.00) Dollars plus interest on the unpaid amount plus penalty,
which interest shall accrue at the rate of one and one-half (1 1/2%)
percent per month until paid.
(6)
In the event the expense of abatement has not been paid within 30
days from the date of issuing an accounting and demand for payment,
the amount unpaid including any penalty and interest therein, shall
constitute a lien pursuant to Government Code Sections 38773 and 38773.1
against the property of the responsible party. Prior to recording
a notice of lien, the Hearing Officer shall provide notice pursuant
to Government Code Section 38773.1. Any such lien not paid by June
30th of each year shall, upon adoption of a resolution by the City
Council, be collected along with, and in the same manner as, the general
property taxes. The liened property shall be subject to the penalties,
procedures, and sale in case of delinquency as provided in the Civil
Code of California.
(7)
As an alternative to a lien and pursuant to Government Code Section
38773.5, the expense of abatement may constitute a special assessment
against a parcel of land owned by the responsible party. The assessment
shall be collected as provided for in Government Code Section 38773.5.
(8)
In addition to any other remedy provided herein or available at law,
expense of abatement pursuant to Government Code Sections 38773, 38773.1
and 38773.5 shall constitute a personal obligation against the responsible
party.
(b)
The recovery of expense of abatement of any nuisance resulting from
the defacement of property by graffiti or any other inscribed material
by a minor who has created, caused, or committed the nuisance shall
be according to the following procedure:
(1)
The City Manager, or his or her designee ("Hearing Officer"),
shall give the minor and the parent or guardian having custody and
control of the minor not less than 48 hours' notice of a hearing
to be held by the Hearing Officer for the purpose of showing cause
why the City should not recover the expense of abatement from the
minor and the parent or guardian having custody and control of the
minor. Following notice, the hearing shall be held by the Hearing
Officer at the time, date and place designated and at such hearing
the minor and the parent or guardian having custody and control of
the minor may each be heard and provided with the opportunity to show
cause why the City should not recover the expense of abatement from
the minor and the parent or guardian having custody and control of
the minor. Following the hearing, the Hearing Officer shall determine
whether the City should recover expense of abatement from the minor
and the parent or guardian having custody and control of the minor.
(2)
If the Hearing Officer determines that the City should recover the
expense of abatement from the minor and the parent or guardian having
custody and control of the minor, the City may provide an accounting
of the expense of abatement along with a demand for payment to the
minor and the parent or guardian having custody and control of the
minor.
(3)
The parent or guardian having custody and control of the minor shall
be jointly and severally liable with the minor for the expense of
abatement pursuant to Government Code Sections 38772, 38773.2, and
38773.6. If payment is not made within 30 days from the date of the
accounting and demand for payment, the payment shall be deemed delinquent
and shall be subject to a penalty assessment of One Hundred and No/100ths
($100.00) Dollars plus interest on the unpaid amount plus penalty,
which interest shall accrue at the rate of one and one-half (1 1/2%)
percent per month until paid.
(4)
In the event the expense of abatement has not been paid within 30
days from the date of issuing an accounting and demand for payment,
the amount unpaid including any penalty and interest therein, shall
constitute a lien pursuant to Government Code Sections 38772 and 38773.2
against the property of the minor and against the property of the
parent or guardian having custody and control of the minor. Prior
to recording a notice of lien, the Hearing Officer shall provide notice
pursuant to Government Code Section 38773.2. Any such lien not paid
by June 30th of each year shall, upon adoption of a resolution by
the City Council, be collected along with, and in the same manner
as, the general property taxes. The liened property shall be subject
to the penalties, procedures, and sale in case of delinquency as provided
in the Civil Code of California.
(5)
As an alternative to a lien and pursuant to Government Code Section
38773.6, the expense of abatement shall constitute 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 assessment shall be collected
as provided for in Government Code Section 38773.6.
(6)
In addition to any other remedy provided herein or available at law,
the expense of abatement pursuant to Government Code Section 38772
shall constitute a personal obligation against the minor and a personal
obligation against the parent or guardian having custody and control
of the minor.
(§ 2, Ord. 1059, eff. December 7, 2007)
The City hereby offers a reward of One Hundred and No/100ths
($100.00) Dollars or such other sum as Council may direct for information
leading to the arrest and conviction of any person injuring, defacing,
or destroying property by the application of graffiti.
(§ 2, Ord. 1059, eff. December 7, 2007)
The procedures set forth in this chapter are not exclusive and
nothing contained herein shall be deemed to preclude the City Attorney
from initiation of any civil or criminal action or from the pursuit
of any available remedy.
(§ 2, Ord. 1059, eff. December 7, 2007)
