Note: Prior history: Ord. 47.
It is the purpose and intent of the city council through the
adoption of this chapter, to provide additional enforcement tools
to protect public and private property from acts of vandalism and
defacement; especially, but not limited to, graffiti on privately
and publicly owned property, which are inimical and destructive of
the rights and values of private property owners as well as the total
community. The city recognizes that graffiti, in particular, constitutes
a public nuisance and must be abated to avoid detrimental impact city
and its residents.
(Ord. 210 § 1, 1993)
The following definitions shall apply in this chapter:
means any aerosol container, regardless of the material from
which it is made, which is adapted or made for the purpose of spraying
paint or other substance capable of defacing property.
means the intentional altering of the physical shape or physical
appearance of property.
means any scribe, engraving pen, glass gutter, etching pen,
chemical pen or similar implement which is adapted to or made for
the purpose of leaving permanent marks on glass, plastic or similar
materials.
means any marker or similar implement with a tip which, at
its broadest width, is greater than one-fourth inch.
includes, but is not limited to, any inscription, word, figure
or design that is marked, etched, scratched, drawn, painted, pasted
or otherwise affixed to or on any surface, regardless of the nature
of the material of that structural component, to the extent that same
was not authorized in advance by the owner thereof, or, despite advance
authorization, is otherwise deemed by the council to be a public nuisance.
means an aerosol paint container, a felt marker or an etching
tool.
means the city manager or his/her designee.
means a person under eighteen years of age.
means the captain or commanding officer of the Lemon Grove
sub station of the county of San Diego sheriff's department.
means any person who owns, controls or possesses property
or who has primary responsibility for the repair or maintenance of
property.
(Ord. 210 § 1, 1993)
A.
Unlawful
to Apply Graffiti. It is unlawful for any person to apply graffiti
on any public or privately owned property within the city.
B.
Possession
of Graffiti Implement by Minors. It is unlawful for any person under
the age of eighteen years to have in his or her possession any graffiti
implement while upon public property or upon private property without
the consent of the owner of such private property, whose consent is
given in advance, and whose consent shall be given as to the person's
presence while in the possession of a graffiti implement.
The foregoing provision shall not apply while the person is
attending, or traveling to or from a school at which the person is
enrolled, if the person is participating in a class at the school
which has, as a requirement of the class, the need to use graffiti
implements.
C.
Possession
in Designated Public Places. No person shall have in his or her possession
any graffiti implement while in any public park, playground, recreational
facility or while loitering in or near an underpass, bridge abutment,
storm drain and other similar types of infrastructure not normally
used by the public except as may be authorized by the city.
D.
Prohibition
of Defacement. It is unlawful for any person to intentionally deface,
alter, change, destroy, mutilate, remove, take down or take away any
public property or any private property without the consent of the
owner of such private property. A mistake as to the private property
owner's identity shall not be a defense to a violation of this section.
(Ord. 210 § 1, 1993)
A.
In lieu
of, or as part of, requesting prosecution of a petition to declare
a minor to be a ward of the court under Welfare and Institutions Code
Section 602 of the State of California (including, but not limited
to, offenses which, in the opinion of the police chief, constitute
a violation of this chapter), or in lieu of prosecuting a violation
of this chapter as a crime against an adult, the police chief with
the approval of (or according to rules and procedures approved by)
the city manager, shall be authorized to offer said minor or adult
an option to perform such community service as the police chief deems
appropriate, but which community service shall, if offered at all,
contain the following minimum elements:
1.
The
minor shall perform community service of at least twenty-four but
not more than eighty hours.
2.
At
least one of the custodial parents, or if none, guardians, shall be
in attendance and participate in assigned work at least fifty percent
of the period of assigned community service.
3.
The
entire period of community service shall be performed under the supervision
of a community service provider approved by the chief of police or
city manager.
4.
Reasonable
effort shall be made to assign the subject minor to a type of community
service that is expected to have the most rehabilitative effect on
the minor. To the extent that the offense giving rise to the offer
of community service constitutes a violation of this chapter, reasonable
effort shall be made by the chief of police or designee to assign
the minor to community service which constitutes the removal of graffiti
as a significant part.
B.
Monetary
Penalties for Violation. Any and all violations of this chapter shall
be a misdemeanor, punishable by a one thousand dollar fine and/or
one year in jail. Any person convicted of an offense in violation
of this chapter shall also be required to pay to the owner of the
damaged property monetary restitution in the amount of pecuniary damage
caused by the offense. If, however, property damage is in excess of
five thousand dollars due to vandalism, then violation shall be treated
as a felony, punishable under the provisions of Section 594 of the
Penal Code of the State of California.
C.
Parental/Guardian Liability. The parent(s) or guardian(s) of any minor child under the age of eighteen years who is living with the parent(s) or guardian(s) and who commits an offense in violation of this chapter shall be liable to the owner of the property for damages as specified in Section 9.32.040(B). In addition, if community service is assigned, parent(s) or guardian(s) will be required to participate with minor in accordance with Section 9.32.040(A).
(Ord. 210 § 1, 1993)
A.
Declaration
of Nuisance. The existence of graffiti within the city limits is a
public and private nuisance, and may be abated according to the provisions
and procedures herein contained.
B.
Right
of City to Require Removal. The city shall have the right to require
property owner to remove graffiti in accordance with the following
provisions:
1.
Notice
to Abate—Contents. If it is determined that a public nuisance,
as defined in this chapter, exists on any lot or premise, or upon
any sidewalk, parking or street adjacent to such lot or premise, the
hearing officer shall cause a notice to be issued to abate such nuisance.
Such notice shall be headed: "NOTICE TO ABATE GRAFFITI" in letters
not less than one inch in length and which shall, in legible characters,
direct the abatement of the nuisance and refer to this chapter for
particulars. Notices served by means other than posting as provided
by this chapter shall contain a description of the property in general
terms reasonable sufficient to identify the location of the nuisance.
2.
Notice to Abate—Service. The notice required by subsection (B)(1) of this section may be served in any of the following manners:
a.
By personal service on the owner, occupant or person in charge of
control of the property;
b.
By regular mail addressed to the owner or person in charge and control
of the property, at the address shown on the last available assessment
roll, or as otherwise known;
c.
By posting at a conspicuous place on the land or abutting public
right-of-way and insertion of an advertisement at least once a week
for the period of two weeks in a newspaper of general circulation
in the city. The newspaper advertisement shall be a general notice
that property in the city has been posted in accordance with this
chapter and contains a general statement of the effect of such postings.
The date of the last such newspaper advertisement will be considered
the notice date for computing the period of time required for abatement
of graffiti by property owner.
3.
Removal of Nuisance—Duty of owner. It shall be the duty of the owner, the agent of the owner, or the person in possession of any lot or premises in the city, within three days from the date of notification as provided in subsection (B)(1) of this section, to remove the nuisance as stated. In the event that the property owner elects to remove graffiti by painting over the graffiti, he or she shall do so in a manner which matches the surrounding paint to the greatest degree practicable, and to the satisfaction of the hearing officer or his/her representative.
4.
Removal of Nuisance—Failure of owner—Action by city. If the owner fails or neglects to remove the nuisance as defined in this chapter within the time specified in this chapter, the hearing officer shall cause such nuisance to be abated. The abatement work may be done by city crews or by private contractor. The city shall have the right to remove said graffiti in accordance with the provisions of Section 9.32.060.
(Ord. 210 § 1, 1993)
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 where the graffiti is located, unless the hearing officer
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 property owner agrees
to pay for the costs of repainting or repairing the more extensive
area.
B.
Provisions
for Right of Entry on Private Property.
1.
Securing
Owner Consent. Prior to entering upon private properly 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 written consent
of the property owner.
2.
Failure
to Obtain Owner Consent. If the city shall have requested consent
to remove or paint over the offending graffiti and the property owner
shall have refused consent for entry on terms acceptable to the city
consistent with the terms of this section, the city shall commence
abatement and cost recovery proceedings for the removal of the graffiti
according to the following procedure.
a.
Abatement Notice and Conduct of Due Process Hearing. The hearing officer shall give not less than forty-eight 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, to the property owner. The determination of the hearing officer after the due process hearing shall be final and not appealable. If, after the due process hearing, regardless of the attendance of the property owner or his or her 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 three days thereafter, the city shall enter upon the property, cause the removal, painting over, or such other eradication as the hearing officer determines appropriate ("eradication effort"), and shall provide the property owner thereafter with an accounting of the costs of such eradication efforts ("eradication accounting").
b.
Cost Hearing. If the property owner fails to request a hearing before
the hearing officer on the eradication accounting, or if a cost hearing
is conducted after due process has been extended to the property owner,
and the hearing officer determines that all or a portion of the costs
are appropriately chargeable to the eradication effort, such amount
determined as appropriate by the hearing officer shall be due and
payable by the property owner within thirty days. Any amount of 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.
c.
Lien. If all or any portion of the assessed eradication charges remain
unpaid after thirty days, pursuant to the authority created by law,
including Government Codes 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. The hearing officer shall present a resolution
of lien to the city council, and upon passage and adoption thereof,
shall cause a certified copy thereof to be recorded with the San Diego
County recorder's office.
(Ord. 210 § 1, 1993)
A.
Common
Utility Colors and Paint-Type. Any gas, electric, telephone, water,
sewer, cable and other utility operating in the city shall paint their
above-surface metal fixtures with a uniform paint type and color for
each utility which meets with the approval of the hearing officer.
B.
Condition
Encroachment Permits. All encroachments permits issued by the city
may, among such other things, be conditioned upon: (1) the permittee
shall apply an anti-graffiti material to the encroaching object of
a type and nature that is acceptable to the hearing officer; (2) the
immediate removal by the permittee of any graffiti; (3) the right
of the city to remove graffiti or to paint the encroaching object;
(4) the permittee shall provide city with sufficient matching paint
and/or anti-graffiti material on demand for use in the painting of
encroaching object containing graffiti; and (5) other design features
including, but not limited to, (a) use of a protective coating to
provide the effective and expeditious removal of graffiti, (b) use
of additional lighting, (c) use of non-solid fencing, (d) use of landscaping
designed to cover large expansive wall such as ivy or similar clinging
vegetation, and (e) use of architectural design to break up long continued
walls or solid areas.
(Ord. 210 § 1, 1993)
A.
Design
of Graffiti-Attracting Surface. Any applicant for design review approval,
conditional use permit, minor use permit, development agreement or
other form of development or building permit shall, to the extent
deemed feasible by the director of community development, have designed
any existing or proposed building structures visible from any public
or quasi-public place in such a manner to consider prevention of graffiti,
including, but not limited to, the following: (1) use of a protective
coating to provide for the effective and expeditious removal of graffiti;
(2) use of additional lighting; (3) use of non-solid fencing; (4)
use of landscaping designed to cover large expansive walls such as
ivy or similar clinging vegetation; and (5) use of architectural design
to break up long continuous walls or solid areas.
B.
Retro-Fit
Existing Graffiti-Attracting Surface.
1.
At Property Owner's Expense. Any property owner of land use other than single-family residential who has been given an abatement notice and due process hearing under Section 9.32.060(B)(2)(a) two times in one year, shall be required to retrofit the property, at the expense of the property owner of said lot, with such features or qualities as may be established by the city as necessary to reduce the attractiveness of the property for graffiti, or as necessary to permit more convenient or efficient removal thereof. In exercising the authority hereunder, the city shall not impose a cost on the property owner greater than three thousand dollars. To retrofit, the property owner will be notified and required to retrofit under the provisions of Section 9.32.060(B)(2)(a), except that the time frame for compliance of the eradication order shall be fourteen days.
C.
Display
and Sale of Graffiti Implements. It is unlawful for any person, firm
or entity engaged in a commercial enterprise ("seller") to display
for sale, trade or exchange, any graffiti implement except in an area
under the control of seller's employee(s).
The only two acceptable methods for displaying a graffiti implement
for sale are:
1.
In
completely enclosed cabinet or other storage device which shall be
permanently affixed to a building or building structure, and which
shall, at all times except during access by authorized representatives,
remain securely locked;
2.
In
an enclosed area behind a sales or service counter from which the
public is precluded from entry.
(Ord. 210 § 1, 1993)
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 declare that it would have adopted each section,
subsection, sentence, clause, phrase or portion thereof, irrespective
of the fact that any one or more sections, subsection, clauses, phrases
or portions be declared invalid or unconstitutional.
(Ord. 210 § 1, 1993)
