A.
The
City Council of Encinitas specifically finds that graffiti on public
or private property is a blighting factor which not only depreciates
the value of property which has been the target of such vandalism
but also depreciates the value of adjacent and surrounding properties
so as to create a negative impact upon the entire City.
B.
The
City Council finds and determines that graffiti is obnoxious and a
public nuisance.
C.
It is
the purpose and intent of the City Council, through adoption of this
chapter, to provide additional enforcement tools to protect public
and private property from acts of vandalism and defacement from the
application of graffiti to privately and publicly owned property.
(Ord. 97-20)
As used in this chapter, the following terms shall have the
following meaning:
means any unauthorized inscription, word, figure, painting,
or other defacement that is written, marked, etched, scratched, sprayed,
drawn, painted, stuck-on, engraved on or otherwise affixed to or on
any surface, regardless of the nature of the material of that structural
component, to the extent the same was not authorized in advance by
the owner thereof, or despite advance authorization, is deemed by
the City Council to be a public nuisance.
(Ord. 97-20)
A.
It is
unlawful for any person to paint, spray, chalk, etch, or otherwise
apply graffiti on public or privately owned buildings, signs, walls,
permanent structures, or places or other surfaces located on public
or privately owned property within the City.
B.
It is
unlawful for any person owning or otherwise in control of any real
property within the City to permit or allow any graffiti to be placed
upon or to remain on any permanent structure located on the property
when graffiti is visible from the street or public or private property.
(Ord. 97-20)
The existence of graffiti within the City limits of the City
is a public nuisance, and may be abated according to the provisions
and procedures herein contained, or by any other method established
by law for the abatement of public nuisances.
(Ord. 97-20)
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 property which is defaced with graffiti to remain so defaced
for a period of seven days after notice of same, unless (1) said person
shall demonstrate by a preponderance of evidence that they do not
have the financial or physical ability to remove the defacing graffiti;
or (2) unless 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 15 days after notice of same.
(Ord. 97-20)
The existence of any surface of a structure on a parcel of land
which has been defaced with graffiti after removal more than five
times in 12 months is a public and private nuisance, and may, in addition
to any other available remedy, be abated at the expense of the property
owner upon order by the City Council by minor modifications thereto,
or to the immediate area surrounding same, or by retrofitting said
surface or surfaces with a graffiti resistant surface, or with such
other features or qualities as may be established by the City Council
as necessary to reduce the attractiveness of the surface for graffiti,
or as necessary to permit more convenient or efficient removal thereof.
(Ord. 97-20)
A.
Use
of Public Funds. Whenever the City becomes aware, or is notified and
determines that graffiti is so located on public or privately owned
property viewable from a public or quasi-public place within the City,
the City shall be authorized to use public funds for the removal of
same, or for the painting or repairing of same, but 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 City Manager,
or his/her designee, determines in writing that a more extensive area
is required to be repainted or repaired in order to avoid an aesthetic
disfigurement to the neighborhood or community, or unless the responsible
party agrees to pay for the costs of repainting or repairing the more
extensive area. This section shall not be construed as creating a
mandatory duty of the City.
B.
Securing
Owner Consent. Prior to entering upon private property or property
owned by a public entity or other than the City, for the purpose of
removal of graffiti, the City shall attempt to secure the consent
of the responsible party, and a release of the City from liability
for private or public property or liability damage.
C.
Failure
to Obtain Owner Consent. If a responsible party fails to remove the
offending graffiti within the time herein specified, or if the City
shall have requested consent to remove or paint over the offending
graffiti and the responsible party shall have refused consent for
entry on terms of this section, the City shall commence abatement
and cost recovery proceedings for the removal of the graffiti according
to the following procedure.
D.
Abatement
and Cost Recovery Proceedings.
1.
Notice and Conduct of Due Process Hearing. The City Manager, or his/her 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 or parties who are 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 ("owner") also, of a "due process" hearing at which said responsible party and owner shall be entitled to present evidence and argue that his or her property does not contain graffiti. The determination of the hearing officer may be appealed to the City Council in accordance with the provisions set forth in Chapter 1.12 of the Encinitas Municipal Code. If, after the due process hearing, regardless of the attendance of the responsible party, owner, or their respective agents, the hearing officer determines that the property contains graffiti viewable from a public or quasi-public place, 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 hearing officer) or such other eradication thereof ("eradication effort") as the hearing officer determines appropriate, and shall provide the responsible party and owner thereafter with an accounting of the costs of such eradication effort on a "full cost recovery basis."
2.
Eradication
Effort. Not sooner than the time specified in the order of the hearing
officer, the City Manager, or his/her designee, shall implement the
eradication order, and shall provide an accounting to the responsible
party, and as appropriate, the owner, of the costs thereof ("eradication
accounting").
3.
Cost
Hearing. If the responsible party or owner fails to request a hearing
before the hearing officer on the eradication accounting ("cost hearing"),
or if requested, a cost hearing is conducted after extending due process
to the responsible party and, as appropriate, the owner, 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. Any amount of assessed eradication charges assessed
by the hearing officer which are less than the total amount set forth
in the eradication accounting shall be explained by written letter
from the hearing officer to the City Council Members.
4.
Lien.
As to such property where the responsible party is the owner, if all
or any portion of the assessed eradication charges remain unpaid after
30 days, pursuant to the authority created by law, including Government
Code 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.
A resolution of lien by the City Council shall upon adoption, cause
a certified copy thereof to be recorded with the San Diego County
Recorder's Office.
(Ord. 97-20)
Any and all violations of this chapter shall be punishable as
an infraction or a misdemeanor, at the discretion of the City, and,
by the performance of community service in the form of graffiti cleanup
to the maximum extent permitted by California Penal Code Section 594.6
and/or other provision of law.
(Ord. 97-20)
Any parent or legal guardian, whose child under the age of 18
unlawfully applies graffiti, shall be personally liable for any and
all costs to any person incurred in connection with the removal of
graffiti caused by said child, and for all attorney's fees and court
costs incurred in connection with the civil prosecution of any claim
for damages.
(Ord. 97-20)
A violation of any of the provisions of this chapter shall constitute
a nuisance and may be abated 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 nuisance.
(Ord. 97-20)
If any section, subsection, sentence, clause, phrase or portion
of this chapter is for any reason held to be invalid or unconstitutional
by the decision of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of this chapter.
The City Council declares that it would have adopted each section,
subsection, sentence, clause, phrase or portion thereof, irrespective
of the fact that any one or more sections, subsections, clauses, phrases
or portions be declared invalid or unconstitutional.
(Ord. 97-20)
