AN
ORDINANCE OF THE CITY OF COVINA RELATING TO THE PREVENTION AND REMOVAL OF
GRAFFITI ESTABLISHING A PENALTY FOR
NON‑REMOVAL AND ESTABLISHING THE PAYMENT OF A REWARD FOR INFORMATION
LEADING TO THE CONVICTION OF GRAFFITI INSCRIBERS
A. Recitals
(i) The City Council finds and declares that
graffiti on public and private property is a blighting factor which not only
depreciates the value of the property which has been the target of such
malicious vandalism, but which also depreciates the value of the adjacent and
surrounding properties and thereby negatively impacts the entire community.
(ii) The City Council further finds and determines
that the inscription of graffiti may be associated with criminal activity and
delinquency and unless graffiti and other inscribed material is removed from
property it tends to remain and other properties are then the target of
graffiti with the result that entire neighborhoods, and the city in general,
are made a leas desirable place to be.
(iii) Section 53069.3 of the California Government
code authorizes the City to enact ordinances to provide for the use or City
funds to remove graffiti from public places and privately owned structures
located within the City.
(iv) In the past, the City of Covina has provided
unlimited, free, graffiti removal services. While this public service benefits
the entire community, it provides no incentive to private property owners to deal directly with the problem and
formulate their own ideas, solutions, and mitigation measures to avoid being
victimized time and time again.
(v) With the current economic recession and
resulting reduction in public resources, the perpetual provision of free and
unlimited graffiti removal services, as the City's sole response to this kind
of malicious behavior, is no longer an effective deterrent to the escalation in
graffiti vandalism and is not a cost effective use of public funds.
(vi) The Council finds and determines that the
adoption of an ordinance making the presence of graffiti unlawful on any
property will: (1) assist and encourage property owners to cooperatively engage
in measures to prevent graffiti, as well as to remove graffiti from their
property in a timely and beneficial manner; (2) alert parents and legal
guardians to their involvement in, and responsibility for, payment of civil
damages in an amount not to exceed Ten Thousand Dollars ($10,000) resulting
from the willful misconduct of a minor in their charge; (3) notify any person
who willfully damages property by inscribing graffiti that their acts will have
direct personal consequences which may include fines, imprisonment court
mandated community service, suspension and/or delay at driving privileges; (4)
notify retailers within the City that it is unlawful to sell or give to any
individual under the age of eighteen (18) years a graffiti implement as defined
by this ordinance and that they must keep, store, and maintain any implement
capable of being used to deface property in a secure location, and otherwise
inaccessible except by special request; (5) advise any person, firm or
corporation engaged in the retail sale of any graffiti implement of their
responsibilities under this Ordinance and to the potential consequences,
including the imposition of a fine, imprisonment or both, for failure to take
proper precautions to keep, store and maintain in an inaccessible location any
implement regulated by this ordinance; and (6) secure the cooperation of
residents, businesses, and contractors of services in the arrest of individuals responsible for inscribing
graffiti on property by providing for the payment of a reward for information
leading to the apprehension and conviction of any person who willfully places
graffiti or other inscribed materiel upon public or privately owned property
within the City.
(vii)
All
legal prerequisites to the adoption of this Ordinance have occurred.
B. Ordinance
NOW, THEREFORE, the City Council of the City of
Covina does ordain as follows:
Section 1. in all respects as set forth in the Recitals. Part
A, of this ordinance.
Section 2
Definitions. For the purpose of this ordinance, the following words and phrases
are defined and shall be construed as hereinafter set out, unless it is
apparent from the context that a different meaning was intended:
A. "Aerosol Container" means any aerosol
based container, bottle, spray device or other mechanism, six (6) ounces or
less which is adapted or made for the purpose of spraying paint, ink, dye or
other similar substance.
B. "Bona fide evidence of majority and identity"
means any document evidencing the age and identity of an individual which has
been issued by a federal, state or local government entity, and includes, but
is not limited to, a motor vehicle operator's license, a registration
certificate issued under the federal Selective Service Act, or an
identification card issued by a member of the armed forces.
C. “City” means the City of
Covina, California.
D."City Manager"
means the City Manager of the city of Covina or his or her designee.
E. "felt Tip Marker" means any indelible
marker, pen or similar implement which contains a fluid which is not soluble in
water and has a flat, pointed or angled tip which at its broadest width is
greater than one‑eight (1/8th) inch.
F. "Graffiti" means the unauthorized application
of paint, ink, chalk, dye or the use of any other Instrument capable of
defacing, damaging, or destroying public and private buildings, structures, or
any portion thereof.
G. "Graffiti Implement" means an aerosol
container, a felt tip marker, paint stick, etching instrument, or any other
device container paint, ink, chalk, dye or similar substance which when used or
applied is capable of defacing glass, metal, concrete or wood.
H. "Obnoxious Graffiti" means graffiti
which, in the determination of the City Manager, has any of the following
characteristics:
(1) Insults or incites hatred or contempt of any
racial, religious or ethnic group;
(2)
Refers to the name of a gang or includes words or symbols associated
with a gang or
(3)
Individual;
(3) Insults or threatens any identifiable
individual or group
(4) Includes obscene or indecent language or
depictions:
(5) Constitutes an aesthetic blight or eyesore to
a
neighborhood;
(6) Tends to
attract sore graffiti; and
(7) Promotes criminal activity or promotes
retaliatory action by an individual (s).
I. "Paint stick or Graffiti Stick" means
any device containing a solid form of paint, chalk, wax, epoxy, or other similar substance that is not water soluble
and is capable of being applied to a surface by pressure, and upon application,
leaving a mark at least one‑eight (1/8th) inch in width.
Section 3. Graffiti Prohibited.
A. It is
unlawful for any parson to apply graffiti to any public or privately owned structure located on public or privately
owned real property within the City.
B. It shall be unlawful for any owner, leases,
occupant or other person having present possession of a lot or parcel of land
within the City to (1) permit graffiti to regain upon such lot or parcel of
land or (2) to maintain any structure affixed to such lot or parcel or lend
with graffiti on such structure or any portion thereof, for a period in excess
of seven (7) calendar days following service by the City of a notice to abate
graffiti. Each day the graffiti is maintained beyond the initial seventy‑two
(72) hour period hereby constitutes a separate offense and is subject to the
penalties set forth in Section 9.
Section 4. Possession of Graffiti implement. '
No person under the age of eighteen (18) years and not in the presence of a
parent or legal guardian shall have in his or her possession a graffiti
implement, as defined by this ordinance, while in any public park, playground,
swimming pool, public recreational facility or any public right‑of‑way
in the City unless necessary in order to participate in and City sponsored
function. This section shall not apply to authorized employees of the City of
Covina nor shall it apply to the authorized agents or contractors under
contract with the City.
Section
5. Removal
Policy.
The City Manager or his designee shall develop a
graffiti removal program to assist property owners in the expeditious removal
of graffiti from their property. Notwithstanding any other provision of this
ordinance, the City shall be authorized to recover its costs incurred in the
removal of graffiti from private property if:
(a) The removal of graffiti or other inscribed
material from privately owned real property exceeds three (3) requests per
privately owned real property during one (1) calendar year.
(b) Where the removal of graffiti has been mandated
pursuant to Section 6 of this ordinance, the owner of the affected property
shall be required to reimburse the City for such services.
14636
(c) Nothing in this ordinance shall prohibit the City Manager or his
designee from waiving the provisions of
this section if it can be determined that the affected property owner has
demonstrated a conscientious effort to prevent graffiti from occurring on their
property as exhibited by, but not limited to, the installation of security
devices such as surveillance cameras, security lighting, sprinklers linked to
motion sensors; protective or covering landscaping; graffiti resistance
building materials; or the application of graffiti resilient paint.
Section 5. Authorization to Remove.
Graffiti may be removed by any of the following
methods:
(I) Wherever the City Manager determines that
graffiti or other inscribed material constitutes "obnoxious graffiti"
as defined in this Ordinance and is so located on public or privately owned
property within the City so as to be capable of being viewed by a person
utilizing any public right‑of‑way in the City, the City Manager is
authorized to provide for the removal of the graffiti or other inscribed
material upon the following conditions:
(a) In removing the graffiti or other inscribed
material, the painting or repair of a more extensive area shall not be
encouraged.
(b) Where a structure is owned by a public entity
other than this City, the removal of the graffiti or other inscribed material
may be authorized only after securing the consent of the public entity having
jurisdiction over the structure and such
entity executes a release and waiver, approved as to form by the City
Attorney, and agrees to an assumption of costs incurred by the City for the
removal of the graffiti or other inscribed material.
(c) Where a structure is privately owned,
unless
immediate removal of the
graffiti is required the removal of
the graffiti or other
inscribed material may be authorized only
after securing the consent
of the owner and the owner having
executed a release and
waiver approved as to form by the City
Attorney.
2. Graffiti which is located on privately owned
structures on privately owned real property within the City and which can be
viewed by a person utilizing any public right‑of‑way within the
city may be removed by the City at the owner's expense as a public nuisance
pursuant to section 7. This section shall apply under the following
circumstances:
(a) The private property owner has
persuaded, allowed or encouraged the graffiti problem;
(b) The private property owner's consent
cannot be obtained;
(c) The City Manager determines that the removal of
graffiti or ether inscribed material from a privately owned property has exceed
three (3) requests per privately owned real property during one (1) calendar
year.
Section 7. Notice to Abate Graffiti. Whenever the City
Manager determines that graffiti is being maintained upon the premises within
the City in violation of Section 3 0f this Ordinance, the City Manager shall
send, by registered or certified mail, or post, at a conspicuous place on the
premises where the graffiti is located, written notice to the owner, and to any
lessee, occupant or other parson having present possession of a lot or parcel
of land within the City that the graffiti
must be removed within seventy‑two (72) hours from the date of service of
the notice. The notice shall be entitled " Notice to Abate
Graffiti," in letters not less than one inch in height, and shall cite
this Ordinance as authority for such abatement. The notice shall contain a
general description of the property on
which the graffiti is located,
(a) The notice shall be on City letterhead in substantially
the following form:
NOTICE TO ABATE GRAFFITI"
NOTICE IS HEREBY GIVEN that under the provisions of
Section 3 of Ordinance _______________________
you are required at your expense to remove or paint
over the graffiti located on the property commonly known as Covina, California,
which is visible to public view, within seventy‑two (72) hours after the
date of service of this notice. The graffiti is visible to public view and
therefore constitutes a public nuisance. If you fail to comply with this order,
the City or its contractor will enter upon your property and abate the public
nuisance. The cost of the abatement by the
City or its contractor 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
said matter are hereby notified to submit an appeal to the Office of the City
Manager within seventy‑two (77) hours from the date of this notice.
At the conclusion of this seventy‑two (72)
hour period the City may proceed with the abatement of the graffiti on your property at your expense without further
notice."
(b) If, an appeal has been made to the Office of the
City Manager within seventy‑two
(72) hours from the date of the Notice to Abate Graffiti, the City Manager, or
his designee, shall hold an administrative hearing on the appeal. The decision
of the city manager or his designee shall be final and conclusive.
(c) If an appeal has not been submitted as set forth
in section 7(b) above, or if the appeal has been denied following an
administrative hearing, and if the private property owner fails to remove or
fails to cause the graffiti to be removed
by the designated date, or such continued date thereafter as approved by the
City Manager, then the City Manager shall cause the graffiti to be abated as a
public nuisance by the City or its contractor, and the City or its contractor
is expressly 'authorized to enter upon the premises for such purpose.
Section 8. Recovery of Costs.
Should the City Manager be required to abate the
graffiti as a public nuisance, as set forth in section 7(c), the City may
recover, pursuant to California Government Code Section 38773, the costs of
abatement through the assessment of a lien against the property on which the
nuisance is maintained.
(a) Prior to the recordation of a lien against
property for the recovery of abatement and related administrative costs, the
City, in accordance with Section 38773.1 or 38773.5 of the
California Government Code, shall provide written
notification, by registered or certified mail, to the property owner that a
lean will be assessed against their property and such costs will constitute a lien upon the land until paid.
The notice of lien shall for purposes of this Ordinance be in form
substantially as follows:
"NOTICE OF LIEN
Pursuant to California
Government Code Section 38773 and the authority of Ordinance
___________________ of
the City of Covina,
Of the City of Covina, the
City Manager of the City of Covina did on or about the __________________ day
of _______________, 1993 cause the removal of graffiti at the premises
hereinafter described in order to
abate a public nuisance on
said real property; and the City Council of the City of Covina did on the
__________
day of ____________, 1993 access the cost of such
abatement upon the real property hereinafter
described; and the same has
not been paid nor any part thereof ; and that said City of Covina does hereby
claim a lien for such costs of abatement in the amount of said assessment to
wit: the sum of _____________________
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 hereinabove mentioned, and upon
which a lien is claimed, is that certain parcel of land lying and being in the
City of Covina, County of Los Angeles, State of California, and particularly
described as follows:
__________________________________________________________________________________________
DATED this ___________ day of ___________, 1993.
___________________________
(b) Between the first and the fifteenth day of July
of each year, the City Manager shall cause to be published in the official
newspaper of the City a notice that any person affected or aggrieved by any act
or determination of the City or the City's City Manager in connection with the
provisions of this Ordinance may appeal to the City Council. An appeal shall be
in writing and shall be filed with the office of the City Clerk prior to the
fifteenth day of July. At the next regular scheduled meeting of the City
Council after the fifteenth day of July, or from time to time thereafter as may
be determined by the Council, the City Council shall hear and render a decision upon each appeal, and the
determination of the Council shall be final and conclusive. In the
event my determination of the City Manager is modified by determination of the
City Council or any assessment changed or corrected, the City Manager shall
cause the correction to be made upon the record showing the assessment.
(C) At the expiration of the time for appeal, or
upon the determination by the city Council of all appeals so filed, and in
compliance with the requirements of any determination so made, the City Manager
shall deliver to the County Auditor of the County of Los Angeles an abstract of each lot or parcel of land
within the city affected by the Section and the amount of each such charge to
be placed upon the assessment roll against the respective parcel. Thereafter,
the charges shall be of the same character and effect, subject to
the same penalties, and shall be collected in the
same manner and at the sane time as City taxes. The provision of this Section
shall not apply to any lot or parcel of land if the charge against it has been
paid prior to the delivery of the abstract to the County Auditor.
Section 9. FAILURE TO REMOVE GRAFFITI
UPON NOTICE
In addition to
any costs incurred by the City for the abatement of graffiti from private
property, failure to voluntarily abate graffiti after notification shall result
in the following penalties :
(a) The failure of any parson, firm, partnership, or
corporation, failing to remove graffiti within the prescribed seventy‑two (72) day period as set forth in
section 3(b) hereby constitute: an infraction and is punishable by a fine of
one Hundred ($100.00) Dollars upon first conviction thereof.
(b) Any person, firm, partnership, or corporation
convicted of violating Section 3(b) of this Ordinance for a second time shall
be guilty of an infraction and shall be
punished by a fine of Two Hundred and Fifty ($250.00) Dollars.
(c) Any person, firm, partnership, or corporation
convicted of violating Section 3(b) of this Ordinance for a third time or any
subsequent number of times shall be deemed guilty of an infraction and shall be punished by a fine not exceeding Five
Hundred ($500.00) Dollars.
(d) Any person, firm, partnership, or corporation
previously convicted three (3) times under this Section 5, violating the
provisions of Section 3(b) hereof, shall be deemed guilty of a misdemeanor and
upon conviction thereof shall re punished is provided in section 14(a), hereof.
Section l0. Alternative actions.
The violation or any of the provisions of this
ordinance or any stage law pertaining to vandalism of property with a graffiti implement shall constitute a nuisance and
may be abated by the City through a civil process by means of a restraining
order, preliminary or permanent injunction or in any other manner available to
the City under provisions of applicable ordinance or State law.
Section
11,. Sale
of Graffiti Implements.
(a) It shall be unlawful for any person, firm or
corporation to sell or give any graffiti implement, as defined by this
Ordinance, to any individual under the age of eighteen (18) years, who is not
accompanied by a parent or legal guardian, without first obtaining bona file
evidence of majority and identity.
(b) Any person, firm or corporation offering for sale to the public any graffiti implement, as defined by this Ordinance, shall keep, store and maintain such material in a place that is locked and secure, or otherwise inaccessible except by special request.
(c) Any person, firm or corporation engaged in the
retail sale of any graffiti. implement as defined by this Ordinances, must
display at a conspicuous location a legible sign measuring not less than twelve
(12) inches by twelve (12) inches
with letters at least 1/2 inch in height which states:
"it
is unlawful for any person to sell or give to any individual under the age of
eighteen years, who is not
accompanied by a parent or legal guardian, any implement or other device
capable of being used to deface property.
Any person who maliciously defaces real property is guilty of vandalism
which is punishable by a fine, imprisonment, or both.
(d) Notwithstanding the provisions of this
ordinance, it shall be unlawful, pursuant to Section 594.1 of the California
Penal Code, for any person, firm, or corporation, except a parent or legal
guardian, to sell or give or in any way furnish to another person, who is under
the age of 18 years, any aerosol
container containing six (6) ounces or more of paint, without first obtaining
bona fide evidence of majority and identity.
(e) Any person, firm or corporation that violates any provision of this section
shall be guilty of a misdemeanor as set forth in Section 14 below.
Section 12. Reward for Information.
The City
Council may, by resolution, offer and pay a reward for information leading to the apprehension and conviction of
any person who places graffiti or other inscribed material ac defined herein
upon public or privately owned structures within the City. In addition to any
fines levied by the City for violation of this ordinance, any person who has
damaged property by inscribing graffiti on public or private property shall be
liable for the amount of any reward paid pursuant to this Ordinance and Section 53069.5 of the California Government
Code.
Section
13. Parental Responsibilitv.
Pursuant to Section 1714.1(D) Of the California
Civil Code, where graffiti is applied
by an unemancipated minor, the parents or
legal guardian of said minor shall be
jointly and severally liable for payment of civil damages resulting from
the misconduct of the minor in an amount not to exceed Ten Thousand Dollars
($10,000.00) for each such offense.
Section 14. Penalty for Violation of Ordinance.
It shall be unlawful for any person, firm,
partnership, or corporation to violate anv provision or fail to comply with any
of the requirements of this Ordinance.
(a) Except as provided in Section 9, any person,
firm, partnership, or corporation violating any provision of this ordinance, o:
failing to comply With any of its requirements, shall be deemed guilty of a
misdemeanor and upon conviction
thereof shall be punished by a fine not exceeding one Thousand Dollars
($1,000.00), or by imprisonment not exceeding six (6) months, or by both such fine and imprisonment. Each such
person, firm, partnership, or corporations shall be deemed guilty of a separate
offense for each and every day or any portion thereof during which any
violation of this Ordinance is committed, continued, or permitted by such
person, firm, partnership, or corporation, and shall be deemed punishable
therefore as provided in this Ordinance.
(b) Notwithstanding the penalties set forth in
Section l4(a) above, any person who maliciously defaces, damages or destroys
property with a graffiti implement is
guilty of vandalism, pursuant to Section 594 of the California Penal Code, 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 (1) year, or by a fine of
Five Thousand Dollars ($5,000.00), but no more than Fifty Thousand Dollars
($50,000.00) depending upon the severity and the amount of defacement, damage
or destruction to property, or by both such fine and imprisonment.
Section I5. Communitv Service.
(a) Upon conviction of any person for violation of
section 3 of this ordinance. 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 Section 640.6 of the
California Penal Code. The sentencing court may require the performance of
community service within the City in addition to any monetary penalties
imposed. In the event the sentencing court approves community service, the City
shall request any adult or emancipated minor convicted of vandalism, as defined
by section 594(a)(1) of the California Penal Code, to: (1) complete a minimum of
24 hours, but no more than 48 hours of community services cleaning up, removing
and repairing property damaged by graffiti for the first conviction; and (2)
complete 48 hours, but no more than 96 hours of community services cleaning up,
removing, and repairing property damaged by graffiti for each subsequent
conviction.
(b) Any person who is under the age of 18 when he or
she violates any provision of this Ordinance or any state law pertaining to
vandalism of property with a graffiti implement, and is found to be a person
described in Section 602 of the California Welfare and Institutions Code by
reason of the commission of vandalism, may be required to perform community
service time pursuant to Section 728 of the California welfare and Institutions
Code 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.
(c) If a minor is personally unable to pay any fine
levied for violating any provision of this Ordinance or is otherwise unable to
make restitution for damages, the minor's parent or legal guardian shall be
liable for payment of the fine or restitution. If the parent or legal guardian
cannot make restitution, the sentencing court may waive payment of the fine or
community service time by the parent or legal guardian upon finding of good
cause. If the sentencing court waives payment of the fine by the parent or
legal guardian, the City shall petition the sentencing court, and the court, at
the courts option, may order tie parent or legal guardian to provide the necessary
labor, equal to the number of hours assigned to the minor adjudicated guilty of
violating any provision of this Ordinance, to clean up, repair, or replace
property damaged by the unemancipated minor.
Section 16. Suspension or Delay of Driving
Privileges.
For each conviction of a person aged 13 to 21 for
violation of Section 3 of this Ordinance, or any State law pertaining to
vandalism of property with a graffiti implement. The city shall petition the
sentencing court to suspend existing driving privileges or delay the issuance
of driving privileges in accordance to California vehicle code section 13202.6.
Section
17. Severability.
The City Council declares that, should any
provision, section, paragraph, sentence, or word of this Ordinance be rendered
or declared invalid by any final court action in a court of competent
jurisdiction, or by reason of any preemptive legislation, the remaining
provisions, section, paragraphs, sentences, and words of this Ordinance shall
remain in full force and effect.
Section18. Remedies Cumulative.
The remedies provided in this ordinance are in
addition to other remedies and penalties available under provisions of
applicable ordinance of the City and the laws of the State of California.
Section 19. All provisions of the Los Angeles County Code, as
heretofore adopted by the City of Covina, which era in conflict with the
provisions of this ordinance are hereby repealed.
Section 20. The City Clerk shall certify to the adoption of
this ordinance and shall cause the same to be posted as required by law.
PASSED, APPROVED AND ADOPTED this__________ day of
____________, 1993.
r
________________________
Mayor
ATTEST:
_______________________
City Clerk
APPROVED
AS TO FORM:
_______________________
City Attorney
I, Mary Jo Southall, City Clerk, Covina,
hereby CERTIFY that Ordinance No. ______________ wee introduced
was introduced and placed
upon its first reading at a regular meeting of the Covina City Council held
____________, 1993, and thereafter
said ordinance was duly adopted and passed at a regular meeting of the City
Council held, ________________, 1992, by the following vote:
AYES:
NOES:
ABSENT:
_______________________________
City Clerk