The purpose of this chapter is to promote the public health,
safety, and welfare of residents and to protect property within the
City of Desert Hot Springs (“City”) by providing a program
for removal of graffiti from walls and structures on both public and
private property, and to provide regulations designed to prevent and
control the further spread of graffiti in the City. The increase of
graffiti on both public and private buildings, structures, and places
is creating a condition of blight within the City, which results in
deterioration of property and business values for adjacent surrounding
property, all to the detriment of the City.
(Prior code § 95.70)
For the purpose of this chapter, the following definitions shall
apply unless the context clearly indicates or requires a different
meaning.
means the elimination, removal or termination of graffiti
from public or private property located within the City limits.
means a container, regardless of the material from which
it is made, that is adapted or crafted for the purpose of spraying
paint or similar substances capable of defacing property.
means the City of Desert Hot Springs.
means the City Council of Desert Hot Springs.
means intentionally altering the physical shape or physical
appearance of property by inscription, words, figures, signs, or design
without prior written permission of the property owner.
means all City costs associated with damage caused by graffiti,
including, but not limited to, court costs, attorneys’ fees,
cost of removal of graffiti or other inscribed material, cost of repair
and replacement of property de-faced by graffiti that cannot be removed
cost effectively, and law enforcement time incurred by or charged
to the City for identifying and apprehending the person(s) who caused
the graffiti.
means a marker or similar implement containing indelible
ink with a tip which, at its broadest, is wider than one-eighth of
an inch.
means any unauthorized inscription, word, figure, mark, sign,
decal, tag or design that is written, marked, etched, scratched, drawn,
pasted, sprayed, painted or otherwise affixed on any real or personal
property.
means an aerosol-type paint container, etching cream, etching
tool, felt-tip marker, paint stick, spray actuator, bumper sticker,
sticker, or any device or material capable of being used to create
a mark at least one-quarter inch wide and/or visible from a distance
of five feet.
means a person under 18 years of age.
means a device containing a solid form of paint, chalk, wax,
epoxy or similar non-water soluble substance, capable of being applied
to a surface to leave a mark at least one-quarter inch wide and/or
visible from a distance of five feet.
means a natural person(s).
means any person who is the owner of real or personal property
that has been defaced, or who has primary responsibility for control
over the property, or who has primary responsibility for maintenance
and repair of the property, and shall include any person owning, leasing,
renting, occupying, managing, or having charge of any property or
structure.
means any public or private area that is accessed from a
public roadway, sidewalk or common area and that is open to view by
persons from the public roadway, sidewalk or common area.
means a parent, legal guardian, or other person over the
age of 21 years who is charged with legal responsibility and/or supervision
of a minor.
(Prior code § 95.71)
A.
The
City reaffirms and declares that graffiti on publicly and privately
owned property is a public nuisance that, if not promptly removed,
tends to attract more graffiti and depreciate the value of the entire
community, making it a less desirable place to live and visit.
B.
California
Government Code Section 53096.3 authorizes cities to provide for the
expedient removal of graffiti from private and public property in
the manner set forth herein. California Government Code Sections 38772,
38773.2 and 38773.6 authorize cities to adopt ordinances making the
expense of abating graffiti caused by certain minors a personal obligation
of the minor and of the parents or guardians having custody and control
of the minor, and a lien or special assessment against property of
the minor and property of the parents or guardians having custody
and control of the minor. California Welfare and Institutions Code
Section 742.14 authorizes cities to adopt ordinances electing to have
the Probation Officer of the County recoup for it, through juvenile
court proceedings in accordance with California Welfare and Institutions
Code Section 742.16, its costs associated with graffiti damage caused
by certain minors. Among other things, this chapter is intended to
implement such statutory provisions.
(Prior code § 95.72)
Any person who maliciously defaces, damages, or destroys real
or personal property not his or her own with graffiti or other inscribed
material is subject to the penalties set forth in this chapter and
California Penal Code Sections 594, 640.5 and 640.6. Any person who
violates those sections shall be subject to the penalties provided
for in that respective section.
(Prior code § 95.73)
A.
It is
unlawful for any person to possess any graffiti tool for the purpose
of defacing, marking, or damaging any public or private property.
B.
Every
person who owns, conducts, operates or manages a retail commercial
establishment selling any graffiti tool shall store or cause such
tools to be stored in an area that is not accessible to the public
in the regular course of business without employee assistance, pending
legal sale or disposition of such tools. Visibility of properly stored
graffiti tools is permitted, but not required. It is the intent of
this chapter to permit, but not to require, viewability of aerosol
paint containers while they are stored or displayed pending retail
sale.
C.
Every
person who owns, conducts, operates, or manages a commercial retail
establishment selling any graffiti tool shall place a sign in clear
public view at, on, or near the display of each such product, stating:
“GRAFFITI IS A CRIME. ANY PERSON DEFACING PROPERTY WITH
PAINT OR OTHER DEVICES IS GUILTY OF A CRIME PUNISHABLE BY IMPRISONMENT
UP TO SIX MONTHS, A FINE OF $1,000 PER INCIDENT, AND PAYMENT OF COSTS
OF GRAFFITI REMOVAL.”
D.
Every
person who owns, conducts, operates, or manages a commercial retail
establishment selling any graffiti tool shall inform all persons who
will be responsible for accepting customer payment for graffiti tools
of the prohibitions of this chapter and the exemptions contained herein.
(Prior code § 95.74)
A.
California
Penal Code Section 594.1(d) prohibits any person from carrying an
aerosol paint container in plain view while in any specified posted
public facility, park, playground, swimming pool, or recreational
area located in the City unless he or she has first received valid
authorization from the City, which has jurisdiction over the public
area. As used in this chapter, “posted” means a sign placed
in a reasonable location or locations stating that it is a misdemeanor
to possess an aerosol paint container in that public facility, park,
playground, swimming pool, or recreational area without authorization.
Any person who violates California Penal Code Section 594.1(d) shall
be subject to the penalties provided for in that section.
B.
California
Penal Code Section 594.1(e) prohibits any minor from possessing an
aerosol paint container for the purpose of defacing property while
on any public highway, street, alley, or way, or other public place
located in the City, regardless of whether that person is or is not
in any automobile, vehicle, or other conveyance. Any person who violates
California Penal Code Section 594.1(e) shall be subject to the penalties
provided for in that section.
C.
No minor
shall purchase or possess any graffiti tool unless accompanied by
a responsible adult or while he or she is attending, or traveling
to or from, a school or activity at which he or she is enrolled, if
he or she is participating in a class at said school or activity which
has, as a written requirement, the need to use a graffiti tool.
D.
No person shall supply, sell, or give any graffiti tool to a minor, nor aid or abet a minor in purchasing or obtaining any graffiti tool, except as provided in subsection C of this section. It is a violation of California Penal Code Section 594.1 for any person, other than a parent or legal guardian, to sell or give or in any way furnish to a minor, any aerosol paint container that is capable of defacing property without first obtaining bona fide evidence of majority and identity. Any person who violates California Penal Code Section 594.1 shall be subject to the penalties provided for in that section.
(Prior code § 95.75)
A.
It is
unlawful for any person owning or otherwise controlling any real or
personal property to permit or allow graffiti to be placed upon or
remain on such property when graffiti is visible from the street or
from other public or private property, for more than 48 hours after
occurrence of graffiti vandalism.
B.
Graffiti
shall be removed or completely covered in a manner that renders it
inconspicuous. When graffiti is painted out, the color used to paint
it out shall match the original color of the surface, or the entire
surface shall be repainted with a new color that is aesthetically
compatible with existing colors and architecture. The removal shall
not leave shadows and shall not follow the pattern of the graffiti
such that letters, design, signs or similar shapes remain apparent
on the surface after graffiti markings have been removed. If the area
is heavily covered with graffiti, the entire surface shall be repainted.
(Prior code § 95.76)
A.
Whenever
the City Manager or designee observes graffiti on any surface in the
City which is visible from the street or other publicly or privately
owned real or personal property within the City, he or she shall cause
a notice to be issued to the property owner, as defined in this chapter,
to abate and remove the graffiti. The property owner shall have five
days from the date of the notice to abate and remove the graffiti.
B.
The
notice to abate shall contain, at a minimum, provisions stating:
1.
The
property owner must, within five days, remove or paint over the graffiti
located on the property.
2.
If
the property owner fails to remove the graffiti, City employees or
private contractors or volunteers will enter the property and paint
over or otherwise abate the graffiti.
3.
Expense
of abatement incurred by the City will be assessed against the property
owner and such costs will constitute a lien or special assessment
against the property until paid in full.
4.
If
the property owner objects to the City abating the property, the property
owner may submit written objections and comments to the City within
five days of the date of this notice. If no objections are received
by the close of business on the fifth day, the City may proceed with
the removal of the graffiti at the property owner’s expense.
C.
The
notice to abate graffiti shall be served upon the property owner(s)
as such owner’s name and address appears on the last equalized
property tax assessment rolls of the County of Riverside or as otherwise
known to the issuing officer or authorized agent. In addition, if
there is a tenant of the premises, the notice shall also be served
on the tenant. If there is no known address for the property owner,
the notice shall be sent in care of the property address. If there
is no person occupying the property, the notice shall be posted thereon.
The notice required by this chapter may be served in any one of the
following manners, unless the notice is served by posting:
1.
By
personal service when serving owner, occupant or person in charge
of the property; or
2.
By
registered or certified mail addressed to the owner at the owner’s
address listed on the last equalized property tax assessment rolls,
or at property address, or any other address as may otherwise be known
to the issuing officer or authorized agent.
D.
The
failure of the issuing officer or any other authorized agent to serve
any person required herein to be served shall not invalidate any proceedings
hereunder as to any other person duly served or relieve any such person
from any duty or obligation imposed by the provisions of this chapter.
E.
Service
of a notice and order which is personally served shall be deemed completed
at the time of such delivery. Service of a notice and order which
is served by mail is deemed completed on the date said notice and
order is deposited in the mail.
(Prior code § 95.77)
A.
The
City is authorized to use City funds to remove the graffiti, and to
repair or replace property when removal of the graffiti is not cost
effective. The City’s removal, repair, or replacement shall
only encompass portions of the property actually defaced by the graffiti.
B.
Should
the property owner, tenant or person in control of the property contact
the City for assistance in abating the graffiti vandalism, or if the
property owner, tenant or person controlling the property fails to
abate the graffiti vandalism within five days of the notice to abate,
the City Manager is authorized to cause the graffiti to be removed
by city forces or private contract.
C.
Neither
the City, nor any official, officers, employees, consultants, or representatives,
including a private contractor hired by the City to remove graffiti,
shall be liable for alleged losses or damages pertaining to the removal
of graffiti in the manner described and authorized in this chapter,
save and except for any losses or damages resulting from gross negligence
or willful misconduct.
D.
The
removal of graffiti authorized by this section is subject to the following:
1.
Where
the graffiti is on a structure owned by public entity other than the
City, entry onto the property for removal of the graffiti shall be
authorized only after securing the consent of the public entity having
jurisdiction over the structure and such entity executes a waiver
and release, and agrees to an assumption of abatement and related
administrative costs.
2.
Where the graffiti is on a privately owned structure, unless summary abatement is authorized under Section 9.16.070 or is necessary as an emergency measure, the entry onto the private property for removal of the graffiti shall be authorized only after securing the consent of the property owner, tenant or other person in control of the property, and execution of waiver and release, or upon issuance of an abatement warrant by a court of competent jurisdiction under California Code of Civil Procedure Section 1822.50 et seq. The costs of obtaining an abatement warrant may be recovered as an expense of abatement pursuant to this chapter.
(Prior code § 95.78)
In emergency cases, the police chief or his or her designee
is hereby authorized to summarily abate gang-related graffiti. The
abatement may be undertaken by City staff representatives, or by outside
contractors. For purposes of this section only, gang-related graffiti
shall be defined as graffiti that is placed on private or public property
by some person or person reasonably believed by the City’s Police
Department or other local law enforcement agency to be a member of,
or affiliated with a criminal street gang, as that term is defined
in Penal Code Section 186.22. The costs of summary abatement, including
all expenses of abatement, may be assessed against the person causing
or creating the graffiti, or a responsible adult, or an emancipated
minor who is responsible for creating the graffiti. Recovery of expenses
of abatement may be enforced by the City in the manner and following
the procedures described in Government Code Section 38773.2.
(Prior code § 95.79)
A.
The
graffiti abatement and cost recovery remedies authorized by this chapter
are intended to supplement the general nuisance abatement and cost
recovery remedies permitted by this chapter or applicable law. In
any given case, the City Manager or designee may use the remedy or
combination of remedies he or she deems most appropriate based on
the facts of that case.
B.
Whenever
the City incurs expenses of abatement to remove graffiti from personal
or real property, or to repair or replace property defaced by graffiti
that cannot be removed cost effectively, the City may invoice (1)
the person(s) who caused the graffiti and/or (2) the owner of the
personal or real property upon which the graffiti existed, which costs
shall be a personal obligation and debt owed to the City by such person(s),
or may be a lien against the property or may be recovered through
special assessment against the property. In case of a minor who causes
graffiti, an invoice may also be sent to the parents or guardians
having custody and control of the minor, who shall be jointly and
severally liable with the minor for the City’s expense of abatement.
Invoices shall be due and payable no later than 30 days following
their receipt, except to the extent that period is tolled due to a
timely request for an administrative hearing. After that, interest
on the amount owing shall accrue at the maximum legal rate and the
City may proceed to collect the debt through any lawful means, including
the procedures established by this chapter and by applicable State
law.
C.
When
graffiti has been removed from public or private property at the expense
of the City, each person who placed any of the graffiti, or the parent
or guardian having custody and control of the minor shall be jointly
and severally liable with the minor.
(Prior code § 95.80)
A.
An invoice
for abatement and related administrative costs sent pursuant to this
chapter shall include all of the following information:
1.
A
statement notifying the recipient that he or she has been determined
by the City to be responsible under California Government Code Section
38772 and this chapter for the City’s expenses of abatement
of certain graffiti in the City and/or repairing or replacing property
damaged by such graffiti.
2.
The
location and description of the graffiti for which recovery of expense
of abatement is sought.
3.
The
date by which the invoice must be paid and the fact that interest
on the amount owing will accrue at the maximum legal rate, if it is
not timely paid.
4.
A
statement notifying the recipient of his or her right to request an
administrative hearing in writing within ten days of receipt of the
invoice regarding liability and/or the amount of costs sought, and
the fact that the time period to pay the invoice will be tolled pending
the outcome of the hearing.
5.
A
statement notifying the recipient that if he or she does not pay the
invoice or request a hearing within the time allowed, then the City’s
determinations regarding liability and costs will become final and
nonappealable to any other City authority and the City will proceed
with lawful collection methods, which may include recording a lien
or a special assessment for the full amount of the invoice plus interest
against property of the recipient.
B.
The
City shall serve the invoice in one of the following ways: (1) by
personal service; (2) by both regular first class mail and certified
mail with return receipt requested; or, (3) if neither of the previous
two methods is available or successful in a given case by some other
method reasonably calculated to provide actual notice to the recipient.
If mail service is used, then the return receipt shall constitute
evidence of the date the invoice was received. If the certified mail
is not accepted, then the invoice will be deemed to have been received
by regular mail three days after its mailing.
C.
Failure
to comply with any of the foregoing requirements shall not render
the invoice or other cost recovery proceedings defective if they meet
minimum constitutional standards for due process.
(Prior code § 95.80.1)
A.
Any
person sent an invoice for recovery of expense of abatement pursuant
to this chapter is entitled to an administrative hearing regarding
liability and/or the amount of costs sought to be recovered pursuant
to a timely written request. A request for a hearing shall be timely
if it is received by the City no later than the close of business
on the tenth day following receipt of the invoice. A timely request
for hearing tolls the time for payment of the invoice until the recipient
has been notified of the hearing officer’s decision.
B.
If a
hearing is timely requested, the City shall send the party requesting
the hearing written notice of the time, date, and location of the
hearing. The notice shall be served in the same manner as the invoice
and shall be reasonably calculated so as to give the recipient at
least three days’ advance notice of the hearing. Notice of the
Hearing Officer’s final decision after the hearing shall be
similarly served.
C.
The
scope of an administrative hearing shall be limited to either or both
of the following issues: (1) liability for costs; and (2) the amount
of costs sought to be recovered. The party requesting the hearing
shall be entitled to submit evidence on either or both issues, which
shall be duly considered by the Hearing Officer provided it is either
presented during the hearing or received by the City Manager or designee
no later than the close of business on the day before the hearing.
No formal rules of evidence shall apply. The party requesting the
hearing shall be entitled to attend the hearing but such attendance
shall not be mandatory.
D.
The
Hearing Officer shall be the City Manager or designee. The Hearing
Officer’s decision shall be final and nonappealable to any other
City authority. Failure to timely request a hearing waives any right
to the hearing and renders the determinations reflected in the invoice
similarly final and nonappealable.
(Prior code § 95.80.2)
If an invoice is not paid in a timely manner and the City’s
determinations regarding the invoice has become final and nonappealable,
then the City may proceed to collect the debt through any lawful means
including but not limited to a lien or special assessment against
the property of the responsible party. In the case of a minor and
the parents or guardians having custody and control of the minor,
the City may proceed to collect the debt by imposition of a graffiti
nuisance abatement lien following the procedures of California Government
Code Section 38773.2 or, as an alternative to such a lien, a special
assessment following the procedures of California Government Code
Section 38773.6. To the extent the aforementioned State law and this
chapter do not specify a particular aspect of the graffiti nuisance
abatement lien or special assessment imposition procedure, the procedures
outlined elsewhere in this Code regarding conventional nuisance abatement
liens and special assessments may be followed, provided they do not
conflict with applicable State law.
(Prior code § 95.80.3)
In addition to the penalties available for misdemeanors under California State law and City of Desert Hot Springs Municipal Code, whenever deemed appropriate by the prosecuting attorney, the City shall petition a sentencing court to impose any or all of the following additional penalties upon conviction for violation of Section 9.16.040:
A.
That
any defendant under 18 years of age caught applying graffiti shall
pay a fine of $500 for a first offense, $1,000 for second offense,
and $1,500 for third offense. Any defendant 18 years of age or older
caught applying graffiti shall pay $1,000 for first offense, $2,000
for second offense, and $3,000 for third offense.
B.
That
defendant clean up, repair or replace the damaged property himself
or herself, or that the defendant, and his or her parent or legal
guardians, if the defendant is a minor, keep the damaged property
or other specified property in the City free of graffiti for up to
one year. This cleanup, repair or replacement obligation shall be
at the defendant’s expense or at the expense of the defendant’s
parents or legal guardians if the defendant is a minor.
C.
For
each conviction of a person aged 13 to 21 the City may petition the
court to suspend existing driving privileges or delay the issuance
of driving privileges in accordance with the California Vehicle Code
Section 13202.06.
(Prior code § 95.80.4)
A.
Pursuant
to California Welfare and Institutions Code Section 741.14, the City
does elect to have the Probation Officer of Riverside County recoup
for it, through juvenile court proceedings in accordance with California
Welfare and Institutions Code Section 742.16, its costs associated
with defacement by minors of its property and the property of others
by graffiti or other inscribed material.
B.
For
purposes of this section only, the City Council makes the following
cost findings, the specific dollar amounts of which shall be set by
Council resolution:
1.
The
City’s average costs per unit of measure of identifying and
apprehending a person subsequently convicted or otherwise found by
a court proceeding to have committed an act prohibited by California
Penal Code Sections 594, 594.3, 594.4, 640.5, 640.6, or 640.7 are
as follows: County Sheriff services rendered to the City under contract,
based upon the estimated value of hours spent by Sheriff’s personnel
and miles driven by patrol vehicles (including fractions thereof).
2.
The
City’s average costs per unit of measure of removing graffiti
or other inscribed material, or of repairing or replacing property
defaced with graffiti or other inscribed material that cannot be removed
cost effectively, may include any of the following:
(Prior code § 95.80.5)
A.
A reward
in an amount established by resolution of the City Council is authorized,
offered and may be paid by the City to any person who provides information
leading to the determination of, the identity of, and the apprehension
of, any person who wilfully or maliciously paints, mars or defaces
any public or private structure located on private or public property
within the City.
B.
The
exact amount of the reward to be paid by the City shall be determined
by the City Council after receipt of a report from the City Manager
indicating that information was received leading to the determination
of the identity of, and the apprehension of, a person who willfully
or maliciously painted, marred or defaced a structure located on public
or private property located within the City, and indicating the final
disposition of such matter. No law enforcement officer, municipal
officer, official or employee of the City shall be eligible for such
reward.
C.
The
City may recover the amount of any reward paid pursuant to this section
from the person arrested and convicted. The reward amount is in addition
to all other authorized restitution and penalties.
(Prior code § 95.80.6)
A.
Any
person who violates any provision of this chapter for which no penalty
is otherwise provided shall be guilty of a misdemeanor.
B.
The
owner, occupant, or agent of any lot or premises within the City who
permits or otherwise allows the existence of a public nuisance upon
any lot or premises owned, occupied or controlled by him or her, shall
be guilty of a misdemeanor.
(Prior code § 95.100)
