GRAFFITI

ARTICLE IV. GRAFFITI ELIMINATION*


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*State law references: Graffiti abatement, Government Code §§ 38772, 38773.2, 53069.3.


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DIVISION 1. GENERALLY

Sec. 18-121. Purpose and intent; definitions.

(a) Purpose and intent. The city council hereby finds and determines that the writing, spraying, scratching, etching or otherwise affixing graffiti or other inscribed materials on publicly or privately owned real or personal property without the consent or permission of the owner thereof is a public nuisance and obnoxious, as well as injurious to the public health, safety and welfare, for the following reasons:

(1) Such markings are often placed on such structures by gangs to indicate illicit control over certain locations or areas for purposes of criminal activity.

(2) Such markings directly and indirectly encourage gang warfare, including drive-by shootings, and other acts of violence which result in injuries and fatalities to gang members and innocent bystanders, alike.

(3) Such markings are destructive to publicly and privately owned property and cause depreciation in the value of such property and depreciation in the value of adjacent and surrounding properties as well.

(4) Such markings result in blight and deterioration of property and business values in the community and lead to economic loss and the destruction of property in general.

(b) Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Graffiti means any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, inscribed or painted on any public or private real or personal property without the consent or permission of the owner thereof.

Responsible adult means a parent, legal guardian or person having legal responsibility for an unemancipated individual under the age of 18.

(Ord. No. 3953, § 1(5-130), 3-18-2002)

Cross references: Definitions generally, § 1-2.

Sec. 18-122. Removal.

(a) The city manager is hereby authorized to use public funds and facilities for the summary abatement and removal of any of the instances of graffiti described in section 18-121 as provided for and subject to the provisions of Government Code § 53069.3.

(b) The city may recover city funds utilized for the repair, replacement and removal of publicly or privately owned property defaced with graffiti or other inscribed material so long as the expenditure is made for one and/or all of the following:

(1) Replacement of or repair to publicly or privately owned real property defaced by graffiti only if the graffiti or other inscribed material cannot be removed cost effectively.

(2) The removal of graffiti or other inscribed material itself, and only if the graffiti or other inscribed material cannot be removed cost effectively may the portion of the property that was defaced be repaired or replaced.

(3) The removal, repair or replacement performed on public property is done only after securing consent of the public entity having jurisdiction and, for privately owned real or personal property, only after securing the consent of the owner or possessor.

(c) If the owner or the person who has primary responsibility for control of personal or private property defaced with graffiti declines to consent to the removal, repair or replacement of such property by the city and permits the property to remain so defaced for a period of 48 hours after the application of the graffiti , the owner shall be deemed as maintaining the property in such a condition as to cause a public nuisance. Under such circumstances, the building official may proceed with the abatement of the graffiti nuisance pursuant to sections 74-179 through 74-197.

(d) Notwithstanding subsection (c) of this section, the maintenance of graffiti on public or private property in such a manner as to constitute a public nuisance is a misdemeanor or infraction. Prosecution of the violation as a misdemeanor or infraction lies in the sole discretion of the city attorney or district attorney of the county.

(Ord. No. 3953, § 1(5-131), 3-18-2002)

Sec. 18-123. Reward leading to apprehension and conviction of vandals.

The city council may, by resolution, offer to pay a reward for information leading to the determination of the identity and the apprehension and conviction of persons who willfully damage or destroy property by defacing it with graffiti or other inscribed material. When a person willfully damages or destroys any property of the city or any property of any other local agency or state or federal agency located within the city, such person shall be liable for the amount of any reward paid pursuant to this article and Government Code § 53069.5. If he is an unemancipated minor, the responsible adult for such minor shall be liable for the reward amount and other fines and costs as provided in this article. (Ord. No. 3953, § 1(5-132), 3-18-2002)

Sec. 18-124. Advisement of article.

The city manager and/or police chief, to the extent permitted by law, are authorized to appear before any court finding any minor or other person guilty of the act of graffiti vandalism for the purposes of informing such court of the provisions of this article regarding graffiti removal and summary abatement and seeking recovery of costs incurred by the city in removing and/or abating the graffiti caused by such minor or other person.

(Ord. No. 3953, § 1(5-133), 3-18-2002)

Sec. 18-125. Preremoval preservation of sufficient evidence.

Pursuant to the authorization granted by Government Code § 53069.3(c)(2), the police department may promulgate procedures for preremoval preservation of sufficient evidence of graffiti or other inscribed material for criminal prosecutions or proceedings pursuant to Welfare and Institutions Code § 602 pertaining to the person who inscribed or applied the graffiti or other material. If the police department chooses to promulgate procedures, those procedures shall be followed by the city prior to or during removal of graffiti or other inscribed material.

(Ord. No. 3953, § 1(5-134), 3-18-2002)

Secs. 18-126--18-150. Reserved.

GRAFFITI

DIVISION 2. GRAFFITI IMPLEMENTS

Sec. 18-151. Definitions.

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Etching substance means any type of liquid or paste product used to permanently etch glass. Ingredients of such etching liquids, etching pastes or etching baths may include but are not limited to ammonia/sodium bifluorides and sulfuric acid.

Graffiti implement means any writing instrument that has a porous point, tip or nib that measures in excess of 1/16 of an inch in width at its widest point, commonly known as markers, marking pens or sign pens, or any glass etching tools or substances. For purposes of this division, a graffiti implement shall not include an aerosol container of paint unless expressly stated otherwise.

Minor means any unemancipated person who is less than 18 years of age. Transfer means any sale, exchange, gift or loan.

(Ord. No. 3953, § 1(5-135), 3-18-2002)

Cross references: Definitions generally, § 1-2.

Sec. 18-152. Restrictions on transferring implements to minors.

It is unlawful and a misdemeanor for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish or cause or permit to be exchanged, given, or otherwise furnished any graffiti implement to any minor, unless such minor first delivers to the person from whom the item is sought a written request for such item signed by the parent or guardian of such minor. The person making any transfer of the item shall retain possession of the signed written request for not less than 30 days and, during such time of retention, shall present the signed request to any peace officer upon such officer's request.

(Ord. No. 3953, § 1(5-136), 3-18-2002)

Sec. 18-153. Possession in designated public places.

It is unlawful and a misdemeanor for a minor or other person to have in his possession any graffiti implement, including an aerosol container of paint, on any public lands or facilities, such as a public park, parkway, median, playground, swimming pool, recreational facility, or while 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. This section shall not apply to any minor who is accompanied by a parent or guardian or during school hours in the course and scope of supervised school activities.

(Ord. No. 3953, § 1(5-137), 3-18-2002)

Cross references: Streets, sidewalks and other public places, ch. 46.

Sec. 18-154. Storage and posting requirements for commercial establishments.

It is unlawful for any commercial establishment that offers to the public items that are defined as graffiti implements, including aerosol containers of paint, to fail to keep, store and maintain such implements in a place that is locked and secured or otherwise inaccessible to the public and to fail to post, in a conspicuous location, a sign measuring not less than 12 inches by 12 inches, in substantially the following form:

IT IS UNLAWFUL FOR A MINOR TO BE SOLD SPRAY PAINT, MARKERS WIDER THAN ONE-SIXTEENTH OF AN INCH, ETCHING TOOLS OR SUBSTANCES, WITHOUT A WRITTEN REQUEST FROM A PARENT OR GUARDIAN. P.C.C. 18-154

(Ord. No. 3953, § 1(5-138), 3-18-2002)

Secs. 18-155--18-180. Reserved.

GRAFFITI

DIVISION 3. GRAFFITI REMOVAL COST RECOVERY

Sec. 18-181. Purpose.

The purpose of this division is to provide for the recovery of abatement and related administrative costs incurred by the city in removing graffiti from public or private real or personal property pursuant to section 18-122.

(Ord. No. 3953, § 1(5-139), 3-18-2002)

Sec. 18-182. Obligation for expense.

(a) When the city removes graffiti pursuant to section 18-122, the expense of abatement and related administrative costs shall be an expense of the minor or other person creating, causing, or committing the graffiti nuisance, and the expense of abating such nuisance shall be a lien against the property of the minor or other person and a personal obligation against the minor or other person.

(b) Notwithstanding subsection (a) of this section, the responsible adult shall be jointly and severally liable with the minor who has created, caused, or committed a graffiti nuisance. As such, the city may recover the costs incurred by the city in abating any nuisance resulting from the defacement by a minor of the property of another by graffiti or any other inscribed material by placing a lien against the property of the responsible adult and by making the expense a personal obligation of the responsible adult.

(c) Notwithstanding any other provision of law, the name and address of the responsible adult, if known, shall be reported by the probation officer to the chief of police for the purpose of enforcement of this section.

(d) As used in this section, the term "expense of abatement and related administrative costs" includes, but is not limited to, court costs, attorney's fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, costs of administering and monitoring the participation of a defendant and his parents or guardians in a graffiti abatement program, and the law enforcement costs incurred by the city in identifying and apprehending the minor or other person.

(e) For purposes of this division, the term "minor" or "other person" means a minor or other person who has confessed to, admitted to, or pled guilty or nolo contendere to a violation of Penal Code §§ 594, 594.3, 640.5, 640.6, or 640.7; a minor convicted by final judgment of a violation of Penal Code §§ 594, 594.3, 640.5, 640.6, or 640.7; or a minor declared a ward of the juvenile court pursuant to Welfare and Institutions Code § 602 by reason of the commission of an act prohibited by Penal Code §§ 594, 594.3, 640.5, 640.6, or 640.7.

(Ord. No. 3953, § 1(5-140), 3-18-2002)

Sec. 18-183. Summary abatement procedure.

The purpose of this section is to establish a procedure to collect abatement and related administrative costs incurred in the summary abatement of any nuisance resulting from the defacement by a minor or other person of the property of another by graffiti or any other inscribed material. The procedure shall consist of the following:

(1) Notice shall be given to the minor or other person prior to the recordation of a lien on the parcel of land owned by the minor or other person. Such notice shall be served in the same manner as a summons in a civil action pursuant to Code of Civil Procedure pt. 2, title 5, ch. 4, art. 3 (Code of Civil Procedure § 415.10 et seq.).

(2) Notice shall be given to the responsible adult prior to the recordation of a lien on the parcel of land owned by the responsible adult. Such notice shall be served in the same manner as a summons in a civil action pursuant to Code of Civil Procedure pt. 2, title 5, ch. 4, art. 3 (Code of Civil Procedure § 415.10 et seq.).

(3) If the minor or other person or responsible adult, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the minor or other person or responsible adult in a conspicuous place, for a period of ten days. The notice shall also be published pursuant to Government Code § 6062 in a newspaper of general circulation that is published in the county in which the property is located.

(4) A graffiti nuisance abatement lien shall be recorded in the county recorder's office in the county in which the parcel of land is located. From the date of recording, the lien shall have the force, effect, and priority of a judgment lien.

(5) A graffiti nuisance abatement lien authorized by this section shall specify the following:

a. The amount of the lien;

b. The name of the agency on whose behalf the lien is imposed;

c. The date of the abatement order;

d. The street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed; and

e. The name and address of the recorded owner of the parcel.

(6) If the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection (5) of this section shall be recorded by the city. A graffiti nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.

(7) A graffiti nuisance abatement lien may be satisfied through foreclosure in an action brought by the city.

(8) The city may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

(9) Costs that are subject to a lien under this section include, but are not limited to, the following:

a. Court costs;

b. Attorney's fees;

c. Costs of removal of the graffiti or other inscribed material;

d. Costs of repair and replacement of defaced property;

e. Costs of administering and monitoring the participation of a defendant and his parents or guardians in a graffiti abatement program; and

f. The law enforcement costs incurred by the city in identifying and apprehending the minor or other person.

(Ord. No. 3953, § 1(5-141), 3-18-2002)

graffiti

Sec. 18-184. Abatement of graffiti nuisance; special assessment.

The purpose of this section is to establish, as an alternative to the procedure established in section 18-183, a procedure to collect abatement and related administrative costs incurred in the summary abatement of any nuisance resulting from the defacement by a minor or other person of the property of another by graffiti or any other inscribed material by making the abatement and related administrative costs a special assessment against a parcel of land owned by the minor or other person or owned by the responsible adult. The procedure shall consist of the following:

(1) The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes.

(2) All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment.

(3) If any real property to which the abatement and related administrative costs relate has been transferred or conveyed to a bona fide purchaser for value or if a lien of a bona fide encumbrancer for value has been created and attaches thereon prior to the date on which the first installment of the taxes would become delinquent, the abatement and related administrative costs shall not result in a lien against the real property but shall instead be transferred to the unsecured roll for collection.

(4) Notices or instruments relating to the abatement proceeding or special assessment may be recorded.

(5) Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property or a minor or other person is responsible for a graffiti -related nuisance or crime, the court may order that person to pay treble the costs of the abatement.

(Ord. No. 3953, § 1(5-142), 3-18-2002)

Secs. 18-185--18-220. Reserved.