[1]
Prior ordinance history: Ord. No. 38.
A. 
The city council of the city of Yucaipa finds graffiti on public or private property a blighting element that leads to depreciation of the value of property that has been targeted by such vandalism and depreciates the value of the adjacent and surrounding properties to the extent that graffiti creates a negative impact upon the entire city.
B. 
The city council finds and determines that graffiti is obnoxious and a public nuisance, and it must be eliminated by means of prevention, education, and abatement to avoid the detrimental impact of such graffiti on the city and its residents, and to prevent the further spread of graffiti.
C. 
The purpose and intent of the city council, through the adoption of this chapter, is to protect public and private property from acts of vandalism and defacement. It is the further intent of the city council, through the adoption of this chapter, to provide notice to all those who disregard the property rights of others, that the law enforcement agencies of the city will strictly enforce the law and vigorously prosecute those persons engaging in violations of this chapter.
(Ord. 286 § 1, 2009)
Whenever the following terms are used in this chapter, they shall have the meaning established by this section:
“Aerosol paint container”
means any aerosol container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint, undercoating, spray insulation, or other substance capable of defacing property.
“City”
means the city of Yucaipa.
“Graffiti”
means any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, painted or engraved on or otherwise glued, posted, or affixed to or on any surface of any public or private real or personal property within the city.
“Graffiti implement”
means any implement capable of marking a surface to create graffiti, including but not limited to aerosol paint containers, markers, etching devices, and gum labels.
“Gum label”
means any material such as, but not limited to, decals, stickers, posters or labels which contain a substance commonly known as adhesive or glue, which cannot be removed from the surface in an intact condition and with minimal efforts.
“Marker”
means any indelible or permanent marker, or similar implement containing any ink that is not water soluble.
“Minor”
means any person under the age of eighteen (18) years.
“Owner”
means any person owning property either public or private, as shown on the last equalized assessment role for the city, or the lessee, tenant or other person having control or possession of the property.
“Person”
means any individual, and also includes any domestic or foreign corporation, or an association, a syndicate, a joint-stock corporation, a partnership of any kind, a club, a business or common-law trust, a society or an individual conducting any business in the city.
“Sale”
means the transfer, in any manner or by any means whatsoever, of title to property for consideration or the serving, supplying or furnishing for a consideration of any property.
(Ord. 286 § 1, 2009)
A. 
No person shall place graffiti upon any public or privately owned tree, rock or temporary or permanent structure located within the city, including, but not limited to, buildings, windows, walls, fences, poles, signs, flood control channels, concrete, and paving.
B. 
No owner of any real property within the city shall permit or allow any graffiti to remain on any tree, rock or temporary or permanent structure located on such property.
C. 
Declaration of Nuisance. The city council hereby declares and finds graffiti to be a nuisance subject to abatement according to the provisions and procedures contained in this chapter and in California Government Code Section 38773 et seq.
(Ord. 286 § 1, 2009)
Whenever the city manager or designee determines that graffiti exists on any permanent or temporary structure in the city which is visible from the street or other public or private property, the city manager or designee shall cause a notice to be issued to abate such nuisance. The property owner shall have seven days after the date of the notice to remove the graffiti, or the property will be subject to abatement by the city.
(Ord. 286 § 1, 2009)
Any notice to abate graffiti pursuant to this chapter shall be in writing and shall be served upon the owner(s) of the affected premises, as such owner’s name and address appear on the last equalized property tax assessment rolls of the county of San Bernardino. If there is no known address for the owner, the notice required by this chapter may be served in any one of the following manners:
A. 
By personal service on the owner, occupant or person in charge or in control of the property;
B. 
By registered or certified mail addressed to the owner at the last known address of the owner. If this address is unknown, the notice will be sent to the property address.
C. 
The notice shall be substantially in the following form:
NOTICE OF INTENT TO REMOVE
GRAFFITI
Date: ______________
NOTICE IS HEREBY GIVEN that you are required by law at your expense to remove or paint over the graffiti located on the property commonly known as ______________, Yucaipa, California, which is visible to public view, within seven (7) days after the date of this notice: or, if you fail to do so, City employees, private contractors employed by the City, or City volunteers will enter upon your property and abate the public nuisance by removal or painting over the graffiti. The cost of the abatement by the City employees, its private contractors, or City volunteers will be assessed upon your property and such costs will constitute a lien upon the land until paid.
All persons having any objection to, or interest in these matters are hereby notified to submit any objections or comments to the City Manager of the City of Yucaipa or his or her designated representative within seven (7) days from the date of this notice. At the conclusion of this seven (7) day period the City may proceed with the abatement of the graffiti inscribed on your property at your expense without further notice.
(Ord. 286 § 1, 2009)
Within seven days from the mailing or personal service of the notice, the owner or person occupying or controlling such premises or lot affected may appeal to the city council. At a regular meeting or regular adjourned meeting of the city council not more than twenty (20) days thereafter, the council shall proceed to hear and pass upon such appeal. The decision of the council thereupon shall be final and conclusive.
(Ord. 286 § 1, 2009)
Upon failure of persons to comply with the notice by the designated date, or such continued date thereafter as the city manager or designated representative approves, then the city manager is authorized and directed to cause the graffiti to be abated by city forces or private contract. Subject to the provisions of Section 8.08.150, the city, its private contractors, or city volunteers are expressly authorized to enter upon the premises for such purposes. All reasonable efforts to minimize damage from such entry shall be taken by the city, and any paint used to obliterate graffiti shall be as close as practicable to background color(s).
(Ord. 286 § 1, 2009)
Property owners in the city may consent in advance to city entry onto private property for graffiti removal purposes. The city will make forms for such consent available.
(Ord. 286 § 1, 2009)
Where a structure is owned by a public entity other than the city, the removal of the graffiti may be authorized only after securing the consent of an authorized representative of the public entity having jurisdiction over the structure.
(Ord. 286 § 1, 2009)
The city manager or designee shall keep an account of costs (including incidental expenses) of abating such nuisance on each separate parcel of land where the work is done and shall render an itemized report in writing to the city council showing the cost of abatement. Before the report is submitted to the council, a copy shall be served in accordance with the provisions of this chapter, together with a notice of time when the report shall be heard by the council for confirmation.
A. 
The city council shall set the matter for hearing to determine the correctness and reasonableness of such costs.
B. 
The term “incidental expenses” shall include, but not be limited to, the actual expenses and costs of the city in the preparation of notices, specifications and contracts and in inspecting the work, and the costs of printing and mailing required hereunder.
(Ord. 286 § 1, 2009)
At the time and place fixed for receiving and considering the report, the city council shall hear and pass upon the report of such costs of abatement, together with any objections or protests. Thereupon, the city council may make such revision, correction or modification in the report as it may deem just, after which, by motion, the report as submitted or as revised, corrected or modified shall be confirmed. The decision of the city council on all protests and objections which may be made shall be final and conclusive.
(Ord. 286 § 1, 2009)
The total cost for abating such nuisance, as confirmed by the city council, shall constitute a special assessment against the respective lot or parcel of land to which it relates, and upon recordation in the office of the San Bernardino County recorder of a notice of lien, as so made and confirmed, shall constitute a lien on the property for the amount of such assessment.
A. 
After such confirmation and recordation, a copy shall be filed with the assessor and tax collector of San Bernardino County, acting for the city, in order that the county officials may add the amounts of the respective assessments to the next regular tax bills levied against the respective lots and parcels of land, and thereafter the amounts shall be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same procedure under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes; or
B. 
After such recordation, such lien may be foreclosed by judicial or other sale in the manner and means provided by law;
C. 
Such notice of lien for recordation shall be in form substantially as follows:
NOTICE OF LIEN
(Claim of City of Yucaipa)
Pursuant to the authority vested by the provisions of Chapter 8.08 of the Yucaipa Municipal Code, the City Engineer of the City of Yucaipa did, on or about the ________ day of ________, 20___, cause the painting over or removal of graffiti at the premises hereinafter described in order to abate a public nuisance on that real property; and the City Council of the City of Yucaipa did on the ________ day of ________, 20___, assess the cost of such abatement upon the real property hereinafter described, and the same has not been paid nor any part thereof; and that the City of Yucaipa does hereby claim a lien on such costs of abatement in the amount of that assessment (the sum of $______); and the same shall be a lien upon the 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 in the City of Yucaipa, County of San Bernardino, State of California, and particularly described as follows:
(Description)
DATED: This ________day of ________ , 20___
_________________________
Employee Name
City Clerk of the City of
Yucaipa, California
D. 
If restitution is subsequently collected from the graffiti vandal, or other responsible party, the city will extinguish all abatement liens for the subject property.
(Ord. 286 § 1, 2009)
Any owner, lessee, occupant or other interested person having any objections or feeling aggrieved at any proceeding taken on appeal by the city council in ordering the abatement of any public nuisance under the provisions of this chapter, must bring an action to contest such decision within thirty (30) days after the date of such decision of the city council. Otherwise, all objections to such decision shall be deemed waived.
(Ord. 286 § 1, 2009)
A. 
State law. Any violation of Section 8.08.030(A) shall be prosecuted to the fullest extent possible under California Penal Code Section 594 et seq., and other applicable state statutes, including but not limited to California Vehicle Code Sections 13202.6 and 42001.71, California Welfare and Institutions Code Section 727.5, and California Civil Code Section 1714.1.
B. 
Criminal penalty. Any person violating Section 8.08.030(A) shall be guilty of a misdemeanor in accordance with Chapter 1.12 of the Yucaipa Municipal Code.
C. 
Nuisance. A violation of any of the provisions of this chapter shall constitute a nuisance as defined in Yucaipa Municipal Code Chapter 8.16 and may be abated by the city through the process and procedure set forth in Chapter 8.16 or through civil process by means of restraining order, preliminary or permanent injunction, or in any other manner provided by law or this code for the abatement of such nuisances.
D. 
Civil penalties. Any person, firm or corporation who violates Section 8.08.030(A) shall be liable for a civil penalty not to exceed one thousand dollars ($1,000.00) for each violation. Each day of such conduct and each occurrence is a separate and distinct violation. In determining the amount of the civil penalty, the court shall consider all relevant circumstances, including, but not limited to, the extent of the harm caused by the conduct constituting a violation, the nature and persistence of such conduct, the length of time over which the conduct occurred, the assets, liabilities and net worth of the person, whether corporate or individual, and any corrective action taken by the defendant. The civil penalty prescribed by this subsection shall be assessed and recovered and a civil action brought by the city attorney or by any member of the public in any court of competent jurisdiction. The civil penalty prescribed by this subsection may be sought in addition to, and not in lieu of, any other remedy, including, but not limited to, criminal remedies, injunctive relief, specific performance or any other remedy. In the event any such action is brought by a member of the public, any civil penalty awarded shall be awarded to and on behalf of the city or other person whose property is damaged.
(Ord. 286 § 1, 2009)
A. 
Authorization to use city funds. Within the limits set forth in this section, city funds may be used to remove graffiti from publicly or privately owned trees, rocks and temporary or permanent structures including, but not limited to, buildings, walls, fences, poles, signs, flood control channels, concrete, and paving, located on property either publicly or privately owned within the city.
B. 
Limitations to use of city funds. The use of city funds as authorized in this section is limited to the following cases:
1. 
The city manager, or the city manager’s designee, must approve each proposed use of city funds for the removal of graffiti.
2. 
The city shall obtain the written consent of the owner of the affected public or private structures prior to removal of graffiti. The consent form shall be in a form approved by the city and shall:
a. 
Authorize entry of city employees, contractors, or volunteers on the affected property to accomplish the removal of the material;
b. 
Assign to the city of Yucaipa any cause or causes of action which the owner may have against any person or persons who deface the property with graffiti; and
c. 
Hold the city, its officers, employees, contractors, or volunteers harmless from all liability arising out of the entry on the property or the work of removing the material.
3. 
In the event that written consent to remove the graffiti is withheld, the city may obtain an abatement warrant to gain access to the subject property.
4. 
City funds shall be used only to remove the graffiti itself and may not be used for painting or repairing a larger area not inscribed by graffiti.
(Ord. 286 § 1, 2009)
A. 
Conditions of encroachment permits. Encroachment permits issued by the city may, among other items, be conditioned on (1) the permittee applying an anti-graffiti material to the encroaching object or structure of a type and nature which is acceptable to the city manager or designee; (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 or structure containing graffiti.
B. 
Conditions on discretionary approvals. In imposing conditions upon conditional use permits, variances, building permits or other similar land use entitlements or development or design applications, the city may impose any or all of the following conditions or other similar or related conditions:
1. 
Use of anti-graffiti material. Applicant may be required to apply an anti-graffiti material and provide a landscape design of a type and nature which is acceptable to the city manager or designee, to such of the publicly viewable surfaces to be constructed on the site deemed by the city manager or designee to be likely to attract graffiti (“graffiti attracting surfaces”).
2. 
Right of access to remove graffiti. Applicant shall grant to city, in writing, the right of entry over and access to such property, upon twenty-four (24) hours’ posted notice, by authorized city employees or agents, for the purpose of removing or painting over graffiti on graffiti attracting surfaces previously designated by the city manager or designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land.
3. 
Supply city with graffiti-removal material. Applicant, and any and all successors in interest, shall, for a specified period of years after approval, provide the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of designated graffiti attracting surfaces.
4. 
Owner to immediately remove graffiti. Owners, developers or other persons applying for subdivision maps shall, as a part of any conditions, covenants and restrictions covenant, which covenant shall run with the land, in a form satisfactory to the city, require that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees, rocks and structures thereon to the city’s satisfaction.
(Ord. 286 § 1, 2009)
A. 
It is unlawful for a minor to have in his or her possession any graffiti implement, except for the minor’s use under the supervision of the minor’s parent, guardian, instructor or employer.
B. 
It is unlawful for any person to have in his or her possession any graffiti implement while upon any real or personal property of the city, other than public highways, streets, alleys or ways, except as may be authorized by the city.
C. 
No person shall have in his or her possession any graffiti implement while in a public park, next to a public monument, public art display, other public property, including, without limitation, any playground, swimming pool, or recreational facility, or while near an underpass, bridge abutment, storm drain, sound wall, or similar type of public infrastructure.
D. 
It is unlawful for any person to have in his or her possession any graffiti implement while upon any public or private property, except as may be authorized by the owner.
(Ord. 286 § 1, 2009)
It is unlawful for any person, firm or corporation that offers to the public any graffiti implement for sale to fail to store or cause to be stored any graffiti implement in such a manner as to be accessible to the public without employee assistance.
(Ord. 286 § 1, 2009)
A. 
City will establish a Yucaipa vandalism and graffiti reward system fund. All civil fines paid by violators of this chapter shall be placed in the fund. The fund may also receive monetary donations from citizens, businesses and other organizations. Unless otherwise directed by the city council, the city manager or designee shall direct the expenditure of monies in the fund, including, but not limited to, for rewards pursuant to subsection B of this section, for restitution to victims of graffiti vandalism, and to offset the costs of graffiti removal and abatement efforts.
B. 
The city may, from time to time, pay rewards in amounts established by the city council for information leading to the arrest and conviction or plea of guilty of any person for violation of California Penal Code Section 594 or 640.5, or any other applicable state statutes related to vandalism, including, but not limited to, graffiti.
C. 
No employee or official of the city shall be eligible for a reward pursuant to subsection B of this section.
D. 
Claims for rewards under subsection B of this section shall be in writing and filed with the city. Each claim shall specify the following information:
1. 
The date, location, and kind of property defaced with graffiti or vandalism;
2. 
The name of the person(s) who committed the defacement;
3. 
The circumstances under which the person making the claim has knowledge that the person(s) committed the defacement;
4. 
Documentary evidence, if any, indicating that the person(s) committed the defacement;
5. 
The name of the employee or official to which the person making the claim discussed the matter; and
6. 
That the person making the claim declares under penalty of perjury that the information in the claim is true and correct.
E. 
Payment of a reward pursuant to subsection B of this section shall only be made by the city after the arrest and conviction or plea of guilty by a person committing the graffiti for violation of California Penal Code Section 594, 640.5, or any other applicable state statutes related to vandalism, including, but not limited to, graffiti.
F. 
The person committing the graffiti shall be liable for the amount of any reward paid pursuant to subsection B of this section. If he or she is a minor, the parent or legal guardian of the minor shall be liable for the reward amount and other fines and costs as provided in this chapter.
(Ord. 286 § 1, 2009)