Chapter 9.49
GRAFFITI ABATEMENT
Sections:
9.49.010 Purpose.
9.49.020 Definitions.
9.49.030 Unlawful to apply graffiti—Prohibition of defacement.
9.49.040 Possession of graffiti implements by minors prohibited.
9.49.050 Possession of graffiti implements prohibited in designated public places.
9.49.060 Limiting access to graffiti implements—Furnishing to minors prohibited.
9.49.070 Graffiti declared public nuisance.
9.49.080 Removal of graffiti by perpetrator.
9.49.090 Removal provisions.
9.49.100 Ease of removal provisions.
9.49.110 Rewards for information.
9.49.120 Penalties and civil liability of parents.
9.49.130 Violations—Civil remedies available.
9.49.010 Purpose.
The ordinance codified in this chapter was enacted for the purpose of establishing procedures whereby all city owned and all privately owned property within the city limits may be maintained free of graffiti. The presence of graffiti on buildings and structures creates a condition of blight resulting in deterioration of property and business values for adjacent properties, all to the detriment of the city, and therefore the abatement of graffiti is necessary for the protection of the public health, safety and welfare.
(Ord. 2091 § 1, 1-22-02)
9.49.020 Definitions.
For the purpose of this chapter, the following words shall have the meanings respectively ascribed to them in this section:
A. "Aerosol paint container" means any aerosol container that is adapted or made for the purpose of applying spray painting, or other substance capable of defacing property.
B. "City" shall mean the city of South Gate.
C. "Felt-tip marker" means any indelible marker or similar implement with a tip that, at its broadest width, is greater than one-eighth of an inch, containing ink or other pigmented liquid that is not water-soluble
D. "Graffiti" means any unauthorized inscription, word, figure, painting or other defacement that is written, marked, etched, scratched, sprayed, drawn, painted or engraved on or otherwise affixed to or on any surface of city-owned property or non-city-owned property within the boundaries of the city by or with, but not limited to, any of the following: felt-tip marker, paint stick or graffiti stick or graffiti implement, to the extent that the same was not authorized in advance by the owner or occupant thereof, or, despite advance authorization, is otherwise deemed by the city council to be a public nuisance.
E. "Graffiti implement" means an aerosol paint container, a felt-tip marker, gum label, paint stick or graffiti stick, etching tool or any other device capable of scarring or leaving a visible mark on glass, metal, concrete or wood or any other surface.
F. "Paint stick" or "graffiti stick" means any device containing a solid form of paint, chalk, wax, epoxy or other similar substance capable of being applied to a surface by pressure, and upon application, of leaving a mark at least one-eighth of an inch in width.
(Ord. 2091 § 2, 1-22-02)
9.49.030 Unlawful to apply graffiti—Prohibition of defacement.
A. It is unlawful or any person to apply graffiti to any trees or structures including, but no limited to, buildings, walls, fences, poles and signs, (hereinafter, "structures") on any city-owned property or without the permission of the owner or occupant, on any non-city-owned property within the boundaries of the city.
B. It is also unlawful for any person to intentionally deface, tear down, obliterate or destroy any copy, transcript or extract of or from any ordinance of the city posted in any public place or any proclamation, advertisement or notice set up at any place by authority of any ordinance of the city before the expiration of the time such notice was to remain set up.
C. It is also unlawful for any person to erect, construct, place or maintain any signboard, billboard, sign or advertisement in, over or on any public highway of the city with the exception of public transportation signs as provided in this code and signs and advertisements of a temporary or seasonal nature and of general community interest that may be authorized by the city’s code.
D. The South Gate police department shall remove every unauthorized sign, handbill or advertisement affixed to or posted contrary to the provisions of this section.
E. Violation of subsection A of this section shall be a misdemeanor punishable by a fine not to exceed five hundred dollars or by imprisonment in the county jail not to exceed six months or by both such fine and imprisonment.
F. Violation of subsection B or C of this section is an infraction punishable by a fine not to exceed two hundred fifty dollars.
(Ord. 2091 § 3, 1-22-02)
9.49.040 Possession of graffiti implements by minors prohibited.
It is unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement while on any school property, grounds, facilities, buildings or structures, or in areas immediately adjacent to these specific locations upon public property, or upon private property without the prior written consent of the owner or occupant of such private property. The provisions of this section shall not apply to the possession of felt-tip markers by minors attending, or traveling to or from school at which the minor is enrolled, if the minor is participating in a class at the school which formally requires the possession of felt-tip markers. The burden of proof in any prosecution for violation of this section shall be upon the minor student to establish the need to possess a felt-tip marker.
(Ord. 2091 § 4, 1-22-02)
9.49.050 Possession of graffiti implements prohibited in designated public places.
It is unlawful for any person to have in his or her possession any graffiti implement while in or upon any public facility, park, playground, swimming pool, recreational facility or other public building owned or operated by the city or while in or within one hundred feet of an underpass, bridge abutment, storm drain, or similar types of infrastructure unless otherwise authorized by the city.
(Ord. 2091 § 5, 1-22-02)
9.49.060 Limiting access to graffiti implements—Furnishing to minors prohibited.
It is unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan or otherwise furnish or cause to permit to be exchanged, given, loaned or otherwise furnished, any graffiti implement to any minor without the consent of the parent or other lawfully guardian, which consent shall be given in advance in writing.
(Ord. 2091 § 6, 1-22-02)
9.49.070 Graffiti declared public nuisance.
The existence of graffiti on any city-owned property, or without the permission of the owner or occupant, on any non-city-owned property within the boundaries of the city is expressly declared to be a public nuisance.
A. 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.
B. It is the duty of both the owner of the property to which the graffiti has been applied, and any person who may be in possession or who has the right to possess such property, to at all times keep such property clear and free of graffiti.
C. The existence of any surface of a structure on any non-city-owned property within the boundaries of the city where such surface has been defaced with graffiti after removal more than five times in twelve months is hereby deemed to be a nuisance, and may be abated by the city requiring modifications thereto, or the immediate area surrounding same, according to the provisions and procedures adopted the city. Such modifications may include, but are not limited to: retrofitting of such surfaces at the expense of the property owner(s) of said lot, not to exceed a total costs of five hundred dollars, or at the cost to the city, at the city’s option, with such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient, expedient or efficient removal of graffiti.
D. No person shall post, affix or attach any handbill, poster or placard on any city-owned property, or without the permission of the owner or occupant, on any non-city-owned property within the boundaries of the city. The police department, director of public works, and any additional city department head, as authorized by the city council, is authorized to order removal of such posters, with the owner of occupant’s permission. The decision to remove such posters shall not be based on content. Any person who is actually or constructively responsible for the posting, creating, printing or copying of such posters shall be liable for the costs incurred in the removal thereof and the police chief, the director of public works and any additional city department head, as authorized by the city council, is authorized to effect the collection of such costs. Such costs shall be the actual or reasonable costs attributable to the removal of such posters. Persons billed for such removal costs may appeal such cost assessment to the city manager in accordance with rules adopted by the city manager. The decision of the city manager will be final for purposes of Code of Civil Procedure Section 1094.5, judicial review, unless the city council within ninety days of that decision is made, grants, in its sole discretion, a hearing on the appeal.
E. For purposes of subsection C of this section, there shall be a presumption that a person (corporate or individual), whose name or telephone number or address or notice of public or private appearance or business located appears on the poster is a person responsible for posting the poster.
F. Any person violating subsection C of this section is guilty of an infraction punishable by a fine of one hundred dollars for the first infraction, two hundred dollars for the second infraction in one year and five hundred dollars for each infraction thereafter within one year.
(Ord. 2091 § 7, 1-22-02)
9.49.080 Removal of graffiti by perpetrator.
Any person applying graffiti on city-owned property or on non-city-owned property within the boundaries of the city shall have the duty to remove it within twenty-four hours after notice by the city or private owner of the property involved. Such removal shall be done in a manner prescribed by the police chief, the director of public works or his or her designee or any additional city department had, as authorized by the city council, and may be deemed by the city to satisfy any payment or penalty that might otherwise be imposed. Any person applying graffiti shall be responsible for such removal or for the payment therefore. Failure of any person to so remove graffiti or pay for its removal shall constitute an additional violation of this ordinance. Where graffiti is applied by an unemancipated minor, the parent(s) or legal guardian(s) shall also be responsible for such removal or for the payment therefore. The police department, the director of public works or his or her designee or any additional city department head, as authorized by the city council may convert such payment into equivalent forms of community service hours. Such payments or equivalent forms of community service hours shall be in addition to any other penalties imposed.
(Ord. 2091 § 8, 1-22-02)
9.49.090 Removal provisions.
Graffiti may be removed by either of the following methods:
A. It is unlawful for any person who is the owner, or who has primary responsibility for control of property or who has primary responsibility for repair or maintenance of property within the boundaries of the city, hereinafter referred to in this section as the "responsible party," to permit said property which is defaced with graffiti to remain so defaced for a period of ten days after service by first-class mail of notice of same, unless (1) the person shall demonstrate by a preponderance of the evidence that he or she does not have the financial ability to remove the defacing graffiti, or (2) it can be demonstrated by the responsible party that the responsible party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it shall be unlawful to permit such property to remain defaced with graffiti for a period of fifteen days after service by first-class mail of notice of same.
B. Right of City to Remove. Whenever the city becomes aware, or is notified and determines that graffiti is located on city-owned property or non-city-owned property within the boundaries of the city that is viewable by persons utilizing any public right-of-way in the city, the city shall secure the consent of the property owner and the city shall be authorized to use public funds to provide for the painting or repairing of same, but shall not authorize or undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located, unless the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid aesthetic disfigurement to the neighborhood or community, or unless the responsible party agrees to pay for the costs of repainting or repairing the more extensive area.
C. Right of Entry on Private Property. Prior to entering upon private property or property owned by a public entity other than the city, for purposes of removal of graffiti, the city shall secure the consent of the responsible party, and a release of the city from any liability.
D. If a responsible party fails to remove the offending graffiti within the time herein specified, or if the city shall have requested consent to remove or paint over the offending graffiti and the responsible party has refused to grant consent for entry on terms acceptable to the city consistent with the terms of this section, the city may commence abatement and cost-recovery proceedings for the removal of the graffiti pursuant to the provisions of this chapter which procedures authorize the recovery of all costs incurred by the city in abating graffiti, including the recordation of a lien as to the affected property. Notwithstanding the foregoing, owner-occupied single-family residences are excluded from such cost recovery proceedings, including the recordation of a lien on the property.
E. Whenever the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, determines that graffiti has been applied to non-city-owned property within the boundaries of the city, the police chief, the director of public works or his or her designee or any additional city department heads, authorized by the city council, determines that the graffiti is obnoxious and that it is in the interest of the city to remove such graffiti through the use of city resources, the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, may use city resources to remove the graffiti provided that the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, obtains the consent of the private property owner an release of the city from liability.
F. Whenever the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, determines that graffiti is being maintained upon any non-city-owned property within the boundaries of the city in violation of this chapter, the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, may issue a written notice and order to abate the graffiti. The notice shall be issued to the owner of the property and shall inform the owner that the owner is maintaining graffiti which constitutes a public nuisance and that maintenance of the graffiti is a violation of the this code. The notice shall state that the graffiti must be removed within ten days from the date of the notice and that if the graffiti is not removed within that time, then the city proposes to remove the graffiti and the cost of such removal, if not paid by the owner, shall be made a lien upon the property. Notwithstanding the foregoing, a notice of graffiti nuisance shall not be issued to the owner of a single-family residence which is owner-occupied.
G. The notice shall also inform the property owner that if the graffiti is not removed within the specified ten-day period, then a hearing shall be held before the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, to hear any protest of the property owner. The notice shall specify the time and place at which the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, shall be scheduled not less than ten days after the date of the notice.
H. The police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, may extend the time period allotted for abatement of the graffiti if the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city, determines that compliance within the time specified in the notice would place an undue burden on the property owner.
I. The notice issued pursuant to this section shall be addressed to the owner of the property as show on the latest tax assessment roll at the owner’s last known address and shall be delivered by depositing a copy of the notice in the United States mail, postage paid, or personally delivering a copy of the notice to the owner. Notice shall also be posed in a conspicuous place on the subject property. Except no such notice shall be either mailed to or posted on an owner-occupied single-family residence.
J. The failure of any person to receive notice shall not affect the validity of any proceeding under this chapter.
K. Before any abatement of any graffiti, the police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, shall hold a hearing regarding the proposed abatement to determine whether the graffiti constitutes a public nuisance and whether abatement is appropriate. The hearing officer shall receive and consider all relevant evidence presented at the hearing. Any interested person shall be given an opportunity to be heard.
L. The hearing officer shall provide notice of the hearing officer’s decision and shall provide an order to abate the graffiti, if appropriate, to the owner of the subject property as shown in the latest tax assessment.
M. The police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, may order that the city abate any graffiti that has been determined to be a public nuisance and that remains unabated at least seven days after the hearing officer gives notice of the hearing officer’s decision and issues an order to abate under this section.
N. The police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, shall keep an account of the costs, including incidental expenses, of abating such graffiti on each separate property where the work is done and shall render an itemized report in writing to the city council showing the cost of abatement of the graffiti. The term incidental expenses shall include but is not limited to the actual expenses and costs of the city in the preparation of notices, title searches, specifications and contracts, inspection of the work, the cost of posting and mailing required under this chapter, any attorney’s fees expended in the abatement of the nuisance, all costs and expenses for which the city may be liable under state law arising from or related to the nuisance abatement action and all costs or expenses to which the city may be entitled under state law. Costs and expenses for which the city may be entitled under state law. Costs and expenses for which the city may be reimbursed begin to accrue at the time the city first receives a complaint regarding the graffiti. Costs and expenses may be recovered once it has become necessary for the city to conduct an abatement hearing. Notwithstanding the foregoing, costs and expenses of abatement may not be recovered from the owners of single-family residences that are owner-occupied.
O. The police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, shall notify, in writing the owner or possessor of the property upon which graffiti has been abated by the city, the cost of the abatement in accordance with Section 25845 of the Government Code. Within ten days of the mailing of such notice, any such party concerned and any other person having any right, title or interest in the property, may file with the city a written request for a hearing on the correctness, reasonableness or both of such claim of abatement costs. The Police chief, the director of public works or his or her designee or any additional city department head, as authorized by the city council, shall then cause notice of the time and place of the hearing before the director of public works or his or her designee to be given to the owners and possessors of the property, and to any other interested person requesting the same by United States mail, postage prepaid, addressed to the person at his or her last-known address at least five days in advance of the hearing.
P. At the time and place fixed for receiving the report, the director of public works or his or her designee shall hear and pass upon the report together with any objections or protests raised by any of the persons liable for the cost of abating the nuisance. Thereupon, the director of public works or his or her designee shall make such revision, correction and modification to the report as it may deem just, after which the report as submitted or as revised, corrected or modified, shall be confirmed. The decision of the director of public works or his or her designee is final.
Q. If the total cost of the abatement of the graffiti by the city is not paid to the city within ten days after the date of the notice of the cost of the abatement, the city shall record, in the office of the city clerk, a statement of the total balance due to the city, a legal description of the property and the name of the owner concerned. From the date of such recording, the balance due will constitute a lien on the property. The lien will continue in full force and effect until the entire amount due, together with interest as the maximum legal rate accruing from the date of the completion of the abatement, is paid in full. Notwithstanding the foregoing, no lien shall be placed on a single-family residence which is owner-occupied.
R. The city may also, in accordance with the provision of the laws of the state of California, cause the amount due to the city by reason of its abating graffiti together with interest at the maximum legal rate, accruing from the date of the completion of the abatement, to be charged to the owners of the property. All laws of the state of California applicable to the levy, collection and enforcement of the city taxes are hereby made applicable to the collection of these charges. Notwithstanding the foregoing, no charges shall be added to the tax bill of an owner of a single-family residence which is owner-occupied.
S. The city council may bring appropriate actions, in a court of competent jurisdiction, to collect any amounts due by reason of the abatement of graffiti by the city and to foreclose any existing liens for such amounts. Notwithstanding the provisions of this ordinance, the city may bring the appropriate civil and criminal action in a court of competent jurisdiction for abatement of any nuisance within the city pursuant to any other provision of the law.
(Ord. 2091 § 9, 1-22-02)
9.49.100 Ease of removal provisions.
A. Any gas, telephone, water, sewer, cable, telephone or other utility operating in the city, other than an electric utility, shall paint their above-surface metal fixtures which are installed after the effective date of the ordinance codified in this chapter with a uniform paint type and color as directed by the director of public works or his or her designee.
B. Encroachment permits issued by the city may, among other things, be conditioned on
1 The permittee applying an anti-graffiti material to the encroaching object or structure of a type and nature that is acceptable to the director of public works or his or her 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 structure;
4 The permittee providing city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object or structure containing graffiti.
C. In imposing conditions upon conditional use permits, variances, building permits to the extent permitted by this code, or other similar land use entitlement or development or design applications, the city may impose any or all of the following conditions or other similar or related conditions:
1 Applicant shall apply an anti-graffiti material of a type and nature that is acceptable to the director of public works or his or her designee to such of the publicly viewable surfaces to be constructed on the site deemed by the director or designee, to be likely to attract graffiti ("graffiti-attracting surfaces");
2 Applicant shall grant in writing, the right of entry over and access to such parcels, upon forty-eight 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 director of public works or his or her designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land;
3 Applicant, and any and all successors in interest, shall, for a period of two 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 Persons applying for subdivision maps shall, as part of any conditions, covenants and restrictions, covenant, which covenant shall run with the land in a form satisfactory to the city, that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees and structures thereon to city’s satisfaction.
(Ord. 2091 § 10, 1-22-02)
9.49.110 Rewards for information.
A. Pursuant to Section 53069.5 of the Government Code, the city may offer a reward in an amount to be established by resolution of the city council for information leading to the identification and apprehension of any person who willfully damages or destroys any city-owned property, or without the permission of the owner or occupant, any non-city-owned property within the boundaries of the city, by the use of graffiti. In the event of damage to public property, the offender or the parent or legal guardian of any unemancipated minor must reimburse the city for any reward paid. In the event of multiple contributors of information, the reward amount shall be divided by the city in the manner it shall deem appropriate. For the purposes of this section, diversion of the offending violator to a community service program, or a plea bargain to a lesser offense, shall constitute a conviction.
B. Claims for rewards under the section shall be filed with the city in the manner specified by the city council.
C. No claim for a reward shall be allowed unless the city investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied.
(Ord. 2091 § 11, 1-22-02)
9.49.120 Penalties and civil liability of parents.
It is the city’s intent that pursuant to California Penal Code Section 640.6(a), all acts of graffiti vandalism occurring within the city shall be prosecuted as misdemeanors pursuant to California Penal Code Section 594, et seq., or the ordinance codified in this chapter.
A. Criminal Penalties. Except for violations of Section 3B, 3C, Section 7 and Section 8 which shall be punishable as infractions, any violations of this chapter shall be a misdemeanor punishable by either six month in jail, a five hundred dollar fine, or by both such fine and imprisonment, and by the performance of community service in the form of graffiti clean-up to the maximum extent permitted by law. Each person, firm, corporation or partnership shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of the provisions of this code is committed, continued or permitted by such a person, firm, corporation or partnership, and shall be deemed punishable thereof as provided in this section.
B. Parent Liability. Any parent or legal guardian having custody and control of a minor who violates any section of this chapter, shall be personally liable for any and all costs to the city or any person or business incurred in connection with the removal of graffiti caused by conduct of the minor, and for all attorney’s fees and court costs incurred in connection with the civil prosecution of any claim of damages or reimbursement not to exceed ten thousand dollars for each violation of the minor.
(Ord. 2091 § 12, 1-22-02)
9.49.130 Violations—Civil remedies available.
A violation of any of the provisions of this chapter shall constitute a nuisance and may be abated by the city through civil process by means of a restraining order, preliminary or permanent injunction, or in any manner provided by law for the abatement of such nuisance.
(Ord. 2091 § 13, 1-22-02)