City of San Juan Capistrano, CA GRAFFITI

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.

Any violation of this chapter is hereby declared to be a public nuisance.

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 any public right-of-way or from other public or private property.

(Ord. No. 970, § 2, 5-4-2010)

§ 5-31.04 Possession of graffiti implement.

It is unlawful for any person to have in his or her possession any graffiti implement while in any (i) storm drain or (ii) public park, playground, swimming pool, public recreational facility, public restroom, 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.

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 5-31.02, while on any (i) highway, street, alleyway or sidewalk, (ii) in any public right-of-way, or (iii) in or upon an underpass, overpass, bridge, abutment, or other similar type of infrastructure within the City.

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 (c) shall not apply to any minor who is (1) accompanied by his or her 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 5-31.04, 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.

(Ord. No. 970, § 2, 5-4-2010)

§ 5-31.05 Removal of graffiti.

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 therefor.

When the City Manager or his/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/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:

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/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.

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 being released by that public entity of the City from liability. The public entity other than the City may consent in advance to City entry onto the property, which the public entity other than the City has control over for graffiti removal or repair/replacement purposes.

(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 of the City from liability by that owner or possessor. 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.

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 owners expense as a public nuisance pursuant to the following options:

The City Manager or his/her designated representative shall cause written notice to be served upon the owner of the affected premises, as such owners 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 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.

The notice shall be on City letterhead in substantially the following form:

“NOTICE OF INTENT TO REMOVE GRAFFITI

“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), San Juan Capistrano, 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.

“All persons having any objections to, or interest in said matters are hereby notified to submit any objections to the City Manager or his/her designated representative within five days from the date of this notice.

“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.”

(3)

Service of the notice by the City Manager or his/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/her designee, shall hold a hearing on the objections. If the City Manager or his/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 City Council. The City Council 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 subsection (c)(4) of this section, or if the objections are overruled following 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/her designated representative approves, then the City Manager or his/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/her designated representative be required to abate the graffiti as set forth in this subsection (c), he or she shall thereafter follow the procedures set forth in subsection (b) or (c) of Section 5-31.07 to seek reimbursement for all abatement and related administrative costs or to place a lien against the property or special assessment against the land.

(Ord. No. 970, § 2, 5-4-2010)

§ 5-31.06 Reward.

Pursuant to Section 53069.5 of the Government Code, the City may offer a reward, as determined by the police chief, for information leading to the arrest and conviction of any person any person whose willful misconduct results in injury or death to any person or who willfully damages or destroys any property, not to exceed one reward of $500 per violation. In the event of multiple contributors of information for a single violation, the reward amount shall be divided by the City in the manner deemed appropriate by the police chief. For the purposes of this section, diversion of the offending violator to a community service program, or a plea bargain to a lesser offense, shall constitute a conviction.

Claims for rewards under this section shall be filed, processed, and paid in accordance with procedures established by the police chief.

Any person who has willfully damaged or destroyed any City property, or any property of any other local agency or State or Federal agency located within the boundaries of the City shall be liable for the amount of any reward paid pursuant to this section and if he is an unemancipated minor his parent or guardian shall also be liable for the amount.

(d)

No law enforcement officer, municipal officer, official or employee of the City shall be eligible for a reward made pursuant to this section.

(Ord. No. 970, § 2, 5-4-2010)

§ 5-31.07 Additional remedies.

Minor and parental financial responsibility for graffiti violations of law. Pursuant to Government Code Section 38772, the City Council hereby makes the expense of summary abatement of graffiti violations of law committed by minor: (1) a joint and several 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 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.

Lien assessment procedure. Pursuant to Government Code Sections 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 referred to as the “responsible party”).

Notice of proposed lien assessment. Should the City Manager or his/her designee 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 notified responsible party shall pay to the City the full costs of abatement within 30 days from the mailing of said notice. If the costs of abatement are paid for by the property owner maintaining the nuisance and also by the minor or other person creating, causing, or committing the nuisance and/or the parent(s) or guardian(s) having custody and control of the minor, amounts paid in excess of the actual costs of abatement shall be reimbursed to the property owner liable for maintaining the nuisance.

(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/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/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 this 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 the City to transmit to any responsible party or of any responsible party to receive any notice provided pursuant to this chapter shall not affect the validity of any proceeding in this chapter, including the liability of any other notified responsible party to pay the costs of abatement and related administrative costs.

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 Recorders 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 the date of recording, the lien shall have the 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 assessors parcel number; and the name and address of the record 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/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:

“NOTICE OF LIEN

“(Claim of the City of San Juan Capistrano)

“Pursuant to Government Code Sections 38772, 38773, 38773,1, 38773.2, 38773.5, 38773,6 and/or 38773.7 and the authority of Chapter 5-13 of the San Juan Capistrano Municipal Code, the City Manager of the City of San Juan Capistrano 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 San Juan Capistrano 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 the City of San Juan Capistrano 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.

“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 San Juan Capistrano, County of Orange, State of California, and particularly described as follows:

“(Street address, legal description, and assessors parcel number)

“The record owner of the real property hereinbefore mentioned is (name) and (address of the record owner).

“DATED this (day) day of (Month), (year). City of San Juan Capistrano, California”

(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 Orange County. 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.

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 5-31.03(a), 5-31.04(a) or 5-31.04(b) shall be guilty of a misdemeanor and punished by a fine of not more than $1,000 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. Notwithstanding the foregoing, any person who maliciously defaces, damages or destroys property with a graffiti implement is guilty of vandalism, pursuant to Penal Code Section 594, and, upon conviction thereof, shall be punished by imprisonment in the state prison or in a county jail for a period not to exceed one year, or by a fine not to exceed $50,000, depending upon the severity and the amount of defacement, damage or destruction to property, or by both such fine and imprisonment. All other violations of this chapter shall be punished in accordance with Chapter 2 of Title 1 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 City Attorney 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, which 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 attorney 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 attorney fees. Pursuant to Government Code Section 38773.5(b), the City may recover attorney 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 attorney 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 attorney fees. In no action, administrative proceeding, or special proceeding shall an award of attorney fees to the prevailing party exceed the amount of reasonable attorney 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 Subdivision (d)(3) 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.

(Ord. No. 970, § 2, 5-4-2010)

§ 5-31.08 Community service.

Upon conviction of any person for violation of Section 5-31.03, or any state law pertaining to vandalism of property with a graffiti implement, the City shall petition the sentencing court to impose community service time, pursuant to Penal Code Section 640.6. The sentencing court may require the performance of community service within the City in addition to any monetary penalties imposed. If the sentencing court approves community service, the City shall request any adult or emancipated minor convicted of vandalism, as defined by Penal Code Section 594(a)(1), to:

Complete a minimum of 24 hours, but no more than 48 hours of community service cleaning up, removing, and repairing property damaged by graffiti for the first conviction; and

Complete 48 hours, but no more than 96 hours of community service cleaning up, removing, and repairing property damaged by graffiti for each subsequent conviction.

Any person who is under the age of 18 when he or she violates any provision of this chapter or any state law pertaining to vandalism of property with a graffiti implement, and is found to be a person described in Welfare and Institutions Code Section 602 by reason of the commission of vandalism, may be required to perform community service time pursuant to Welfare and Institutions Code Section 729.1. For any minor adjudicated guilty of vandalism, the City will petition the juvenile court and the court may, in addition to any other penalties imposed by the City, require the unemancipated minor to provide the necessary labor to clean up, repair, or replace defaced, damaged or destroyed property, or otherwise make restitution to the property owner.