ORDINANCE NO. 02 (1993)

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR RELATING TO THE PREVENTION AND REMOVAL OF GRAFFITI AND OTHER INSCRIBED MATERIAL AND ESTABLISHING THE PAYMENT OF A REWARD FOR INFORMATION LEADING TO THE CONVICTION OF GRAFFITI INSCRIBERS.

A. Recital.

(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 less desirable place to be.

(iii) Section 53069.3 of the California Government Code authorizes the City to enact ordinances to provide for the use of City funds to remove graffiti from public places and privately owned structures located within the City.

(iv) In the past, the City of Diamond Bar 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 of driving privileges; (4) notify retailers within the City that 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 material 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 Diamond Bar 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 as 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 Diamond Bar, California

D. City Manager means the City Manager of the City of Diamond Bar 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-eighth (1/8^th ) 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, nail polish, shoe polish, paint stick, etching instrument, or any other device containing 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 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 more 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-eighth (1/8^th) inch in width.

Section 3. Graffiti Prohibited

A. It is unlawful for any person 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, lessee, occupant or other person having present possession of a lot or parcel of land within the City to (1) permit graffiti to remain upon such lot or parcel of land or (2) to maintain any structure affixed to such lot or parcel or land 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 seven (7) day 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 any City sponsored function. This section shall not apply to authorized employees of the City of Diamond Bar 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 cost 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 four (4) requests or a maximum of 600 square feet 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.

(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 resistant building materials; or the application of graffiti-resilient paint.

Section 6 Authorization to Remove. Graffiti may be removed by any of the following methods.

(1) 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 authorized.

(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, 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 other inscribed material from a privately owned property has exceeded four (4) requests or a maximum of 600 square feet 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 of 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 person having present possession of a lot or parcel of land within the City that the graffiti must be removed within seven (7) days 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 _____________________ , Diamond Bar, California which is visible to public view, within seven (7) days after the date of service of this notice. The graffiti is visible to public view and therefore constitute 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 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 on your property at your expense without further notice.

(b) If an appeal has been made to the office of the city Manager within seven (7) days 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 fourth 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 lien 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 Diamond Bar, the City Manager of the City of Diamond Bar did on or about the day of _____ 199_ 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 Diamond Bar did on the _day of 199_ 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 said City of Diamond Bar 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 Diamond Bar, County of Los Angeles, State of California, and particularly described as follows: _______________________.

DATED this day of _, 199.

__________________________________

City Clerk, City of Diamond Bar

(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 any determination of the City Manager is modified by determination of the City Council of 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 this 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 same 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 person, firm, partnership, or corporation, failing to remove graffiti within the prescribed seven (7) day period as set forth in Section 3(b) hereby constitutes 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 9, violating the provisions of Section 3 (b) hereof, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Section 14(a), hereof.

Section 10 Alternative Actions. The violating of any of the provisions of this Ordinance or any State 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 ordinances 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 fide 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 Ordinance, must display at a conspicuous location a legible sign measuring not less than twelve (12) inches by twelve (12) inches with letters at least ½ 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 as 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 inscribed 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 Responsibility. Pursuant to Section 1714.1(b) 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 any 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, or 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 corporation 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 14(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 15. Community 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 court’s option, may order the 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 violating 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.

Section 18. 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 Diamond Bar, which are in conflict with the provisions of this Ordinance hereby are repealed.

Section 20. The City Clerk shall certify to the passage of this Ordinance and shall cause the same to be posted in three (3) public places within the city of Diamond Bar within fifteen (15) days after its passage in the manner prescribed by Resolution No. 89-6.

ADOPTED AND APPROVED this 6^th day of April,1993.

__________________________________________ MAYOR

I, LYNDA BURGESS, the City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the Council of the City of Diamond Bar held on the 16^th day of March, 1993, and was finally passed at a regular meeting of the Council of the City of Diamond Bar held on the 6^th, day of April, 1993, by the following Roll call vote;

AYES: COUNCILMEMBER: Mayor Pro Tem Papen, MacBride

Forbing, Mayor Miller

NOES: COUNCILMEMBER: None

ABSENT: COUNCILMEMBER: Werner

ABSTAINED: COUNCILMEMBER: None

ATTEST:

____________________________