Chapter 8.14
GRAFFITI REMOVAL1
Sections:
8.14.020 Prohibition – Declaration of nuisance.
8.14.030 Possession of graffiti implement.
8.14.040 Furnishing to minors – Prohibited.
8.14.050 Posting and storage requirements for sellers of graffiti implements.
8.14.070 Payment of abatement costs.
8.14.080 Abatement lien authority.
8.14.110 Land use entitlements – Conditions.
8.14.120 Encroachment permits – Conditions.
8.14.130 Additional remedies – Recovery from minors.
8.14.140 Violation – Additional penalties.
8.14.010 Definitions.
The following definitions apply to the use of these terms for the purposes of this chapter:
“Aerosol paint container” means any aerosol container, regardless of the material from which it is made, adapted, constructed or intended for the purpose of spraying paint or other substances capable of defacing property.
“City” means the jurisdictional limits of the city of Aliso Viejo, or the city of Aliso Viejo, unless a different geographical area or entity is clearly indicated by the context.
“City manager” means the city manager of the city of Aliso Viejo or designee.
“Director” means the director of public works of the city of Aliso Viejo or designee.
“Etching cream” means any cream, gel, liquid or solution capable by means of a chemical or physical action of defacing, damaging, or destroying hard surfaces by etching or abrasives.
“Etching tool or scribe” means an instrument, tool or device that is designed, commonly used, or capable of etching, defacing or marking glass, plastic, wood, metal, concrete or other hard surfaces. This definition includes, but is not limited to, picks, scribes, awls, markers and etchers.
“Felt tip marker” means any indelible marker or similar implement with a tip measured at its broadest width greater than one-eighth inch containing ink or other pigmented liquid that is not water soluble.
“Graffiti” means any inscription, word, figure, marking or design that is written, marked, etched, scratched, drawn, inscribed, posted, painted or otherwise marked or affixed, including, but not limited to, stickers, on any real public or private property that was not authorized in advance by the owner of such property.
“Graffiti implement” means an aerosol paint container, etching cream, felt tip marker, graffiti stick, gum label or etching tool.
“Graffiti stick” means a 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, leaving a mark at least one-eighth of an inch in width that is not water soluble.
“Gum label” means any sheet of paper, fabric, plastic or other substance with an adhesive backing capable of adhering to a surface.
“Minor” means any unemancipated person who is less than 18 years of age.
“Person” means any individual, firm, partnership, corporation, association, or any other organization or entity, however formed.
“Property” means all real and personal property located in the city, including, but not limited to, any structures, improvements, fences, poles, signs, rocks, trees, paving, etc., located thereon.
“Responsible party” means the owner of record of public or private property located within the city; a person with primary responsibility for control of such public or private property; or a person with primary responsibility for the maintenance of such public or private property. [Ord. 2010-126 § 1 (Exh. A)].
Cross-reference: definitions generally, AVMC 1.02.010.
8.14.020 Prohibition – Declaration of nuisance.
A. It is unlawful for any person to write, paint, spray, chalk, scratch or otherwise affix or apply graffiti on any property within the city.
B. Any graffiti placed and/or existing upon property located within the city is declared to be a public nuisance. Graffiti not voluntarily removed as provided in this chapter shall be abated as provided herein. [Ord. 2010-126 § 1 (Exh. A)].
8.14.030 Possession of graffiti implement.
A. It is unlawful for a minor to have in his or her possession any graffiti implement, unless the minor’s legal use of such graffiti implement is under the supervision of the minor’s parent, guardian, instructor or employer. It is unlawful for a parent or legal guardian having custody or control of a minor to knowingly permit, or by insufficient control, allow the minor to possess a graffiti implement unless supervision to the minor is provided.
B. It is unlawful for any person to have in his or her possession any graffiti implement while upon any private property in the city without the prior written consent of the property owner.
C. The foregoing provisions shall not apply to any person attending or traveling to or from a school at which he or she is currently enrolled, if such person is participating in a formally sanctioned school activity requiring the use of a graffiti implement. [Ord. 2010-126 § 1 (Exh. A)].
8.14.040 Furnishing to minors – Prohibited.
It is unlawful for any person to sell, exchange, give, loan or otherwise furnish an aerosol paint container, etching cream or graffiti stick to a minor. [Ord. 2010-126 § 1 (Exh. A)].
8.14.050 Posting and storage requirements for sellers of graffiti implements.
A. It is unlawful for any person that offers to the public any aerosol paint containers, etching creams or graffiti sticks for sale to store or cause to be stored such aerosol paint containers, etching creams or graffiti sticks in such a manner as to be freely accessible to the public without employee assistance. Any person that offers any aerosol paint containers, etching creams or graffiti sticks for sale shall store such merchandise in a locked enclosure at all times.
B. It is unlawful for any person that offers to the public any aerosol paint containers, etching creams or graffiti sticks to fail to post in a conspicuous location, a sign containing the following language in letters at least one-half inch in height:
IT IS UNLAWFUL FOR A MINOR TO BUY OR BE SOLD SPRAY PAINT, PAINT STICKS, OR ETCHING CREAM. (AVMC. §§8.16.040-8.16.050)
[Ord. 2010-126 § 1 (Exh. A)].
8.14.060 Removal of graffiti.
Graffiti placed or existing on property within the city shall be removed by any of the following methods:
A. Any person who applies graffiti within the city shall have the duty to remove the same within 24 hours after receiving notice from the city or owner of the property upon which the graffiti was applied. The failure of any person to remove graffiti within 24 hours after receiving notice from the city or owner of the property shall constitute an additional violation of this chapter. Where graffiti is applied by a minor, the parent or legal guardian shall be responsible for either the removal of such graffiti or for the cost of its removal.
B. The city council authorizes the city manager to remove graffiti from any and all property owned or maintained by the city.
C. Whenever the city manager determines that graffiti is located on private property within the city that is visible to a person utilizing any public right-of-way, the city manager is authorized, but is not required, to provide for the removal of said graffiti at the city’s expense, without reimbursement from the property owner upon the following conditions:
1. The painting or repair of the property where the graffiti is located shall be limited to only that area, or those areas, where the graffiti has been applied.
2. When the property is not owned by the city, the removal of the graffiti, either by the city or a private contractor, may be authorized only after securing the consent of the owner of the property; and
3. The removal by the city of graffiti on private property shall be at the sole and absolute discretion of the city manager based upon available resources.
D. Graffiti located on property within the city that is visible to a person utilizing any public right-of-way may be abated as a public nuisance, at the owner’s expense, pursuant to the following provisions:
1. Whenever the director determines that graffiti is located on property within the city, the director may cause a written notice to be served upon the owner of the property upon which the graffiti is located, as such owner’s name appears on the latest equalized assessment roll. The notice shall be served in the same manner as a summons in a civil action in accordance with the requirements of the California Code of Civil Procedure. If the owner or other responsible party cannot be found after a diligent search, then the notice may be served by posting a copy thereof in a conspicuous place upon the property upon which the graffiti has been placed for a period of 10 days and publication thereof in a newspaper pursuant to California Government Code Section 6062; provided, that the failure of any person to receive such notice shall not affect the validity of any proceeding hereunder. The property owner shall have five calendar days after the date appearing on the notice to remove the graffiti. If the owner or other responsible party fails to remove the graffiti within five calendar days, the city shall have the right to remove the graffiti and place a lien on the property upon which the graffiti is located for the abatement costs of such removal.
2. The notice shall be substantially in the following form:
NOTICE OF INTENT TO REMOVE GRAFFITI
Date:
NOTICE IS HEREBY GIVEN that you are required at your expense to remove or paint over the graffiti located on the property commonly known as _________, Aliso Viejo, California, (Assessor Parcel No. ___) within five (5) calendar days after the date appearing on this notice. Said graffiti is visible to public view and therefore constitutes a public nuisance pursuant to Section 8.14.020 of the Aliso Viejo Municipal Code. If you fail to comply with this order, city employees or private contractors under the direction of the city may enter upon your property and abate the public nuisance by removing or painting over the graffiti. The cost of the abatement by the city or its private contractors, including the labor, materials, legal and other administrative costs associated with the removal of graffiti on your property, if not paid, will be assessed against your property and such costs will constitute a lien upon your property until paid.
All persons having any objections to, or interest in, said matters are hereby notified to submit any objections or comments to the City Manager for the City of Aliso Viejo within two (2) calendar days from the date appearing on this notice. If no objections are submitted within this two (2) day period, the city may proceed with the abatement of the graffiti inscribed on your property at your expense without further notice at the conclusion of the five (5) day period.
3. If any objections are submitted to the city manager within two days after the date appearing on the notice of intent to remove graffiti, abatement of the graffiti shall be tolled and the city manager shall hold a hearing on the objections. If the city manager overrules the objections, the owner or other responsible party shall remove the graffiti within two calendar days after the date of the city manager’s decision. The decision of the city manager shall be final.
4. If no objections are submitted or if the objections are overruled following a hearing, and if the owner or other responsible party fails to remove or fails to cause the removal of graffiti by the designated date, or by such continued date thereafter as the city manager may authorize, then the director shall cause the graffiti to be abated by city forces or private contract. The city or its private contractor shall be permitted to enter upon the premises for such purpose upon consent of owner and/or court order.
5. The cost of abatement by the city shall be recovered pursuant to AVMC 8.14.080. [Ord. 2011-136 § 12; Ord. 2010-126 § 1 (Exh. A)].
8.14.070 Payment of abatement costs.
Should the city be required to abate the graffiti as set forth in AVMC 8.14.060(D), the director shall track and account for the abatement costs, including all labor, materials, legal and other administrative costs associated with the removal of graffiti. The owner or other responsible party shall then be sent a notice of the abatement costs and will be given 30 days from the date appearing on such notice to pay the city for the full abatement costs. Nothing contained herein shall be deemed to prevent the city manager from granting a reasonable extension of time, upon showing good cause, to permit the owner or other responsible party to pay the abatement costs. [Ord. 2010-126 § 1 (Exh. A)].
8.14.080 Abatement lien authority.
A. Should the owner or other responsible party fail to pay the abatement costs as required by AVMC 8.14.070, the city manager shall thereafter cause the abatement costs identified in the notice provided pursuant to AVMC 8.14.070 to be collected as a nuisance abatement lien in accordance with the procedure set forth in California Government Code Section 38773.1.
B. The nuisance abatement lien authorized by this section shall specify the amount of the lien (which shall consist of the unpaid amount of the abatement costs); the name of the agency on whose behalf the lien is imposed; the dates of the notice of intent to remove graffiti; the street address, legal description, and assessor’s parcel number of the parcel on which the lien is imposed; and the name and address of the recorded owner of the parcel. The notice of lien for purposes of this chapter shall be in substantially the following form:
NOTICE OF LIEN
(CLAIM OF THE CITY OF ALISO VIEJO)
Pursuant to California Government Code, Section 38773 and the authority of Chapter 8.16 of the Aliso Viejo Municipal Code, the City Manager of the City of Aliso Viejo did on or about the _______ day of __________ 20__ cause the painting over or removal of graffiti at the premises hereinafter described in the __________, 20__ Notice of Intent to Remove Graffiti on said real property, and the City Manager of the City of Aliso Viejo did on the ____ day of _____ 20__ assess the costs of such abatement upon the real property hereinafter described since the same has not been paid. Further, the City of Aliso Viejo does hereby claim a lien for such abatement costs in the amount of said assessment, to wit, the sum of _______ dollars and ______ cents. This amount shall be a lien upon said real property until paid in full and discharged of record.
The real property hereinafter mentioned, and upon which a lien is claimed, is that certain parcel of land in the City of Aliso Viejo, County of Orange, State of California more particularly described as follows:
[ADD LEGAL DESCRIPTION]
DATED this ____ day of _____________.
City of Aliso Viejo, California
C. The abatement lien shall be recorded in the Orange County recorder’s office and from the date of recordation, it shall have the force and effect and priority of a judgment lien. If the nuisance abatement lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge shall be recorded by the city. The nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index. A nuisance abatement lien may be satisfied through foreclosure in an action brought by the city for a money judgment. The city may recover from the property owner any costs incurred regarding the processing and recording of the lien in the event the county recorder’s office imposes a fee upon the city for processing and recording the lien, and shall provide notice to the property owner as part of its foreclosure action to enforce the lien.
D. As an alternate abatement lien procedure to that procedure set forth in California Government Code Section 38773.1, the city council also establishes the following optional abatement lien procedure resulting in a special assessment against a parcel of land owned by a property owner or a responsible party upon which graffiti has been placed and not removed. This optional lien procedure is established pursuant to California Government Code Section 38773.5. To establish a lien abatement assessment against land, the same procedural steps set forth in this section shall be followed. However, the notice of intent to remove graffiti and notice of lien shall include a statement specifying that the property may be sold after three years by the tax collector for unpaid delinquent taxes. The tax collector’s power of sale shall not be affected by the failure of the property owner to receive any notice required by this chapter. Further, when the city uses the alternate lien abatement procedures contained in this subsection, attorneys’ fees shall be awarded to the prevailing party, but only in circumstances when the city seeks recovery of its own attorneys’ fees. The assessment against land shall be collected at the same time and in the same manner as municipal taxes. [Ord. 2010-126 § 1 (Exh. A)].
8.14.090 Alternate actions.
Nothing in this chapter shall be deemed to prevent the city from commencing a civil or criminal proceeding to remove graffiti or from pursuing any other means available to it under provisions of applicable ordinances or state law in addition to or as an alternative to the procedures set forth herein. [Ord. 2010-126 § 1 (Exh. A)].
8.14.100 Rewards.
The city council may, by resolution, establish a reward for information leading to the identification, apprehension and conviction of any person who places graffiti upon any public or private property within the city. Said resolution may require that the convicted offender reimburse the city for any reward paid, and place responsibility for reimbursement upon the parent(s) or legal guardian(s) of any minor so convicted. [Ord. 2010-126 § 1 (Exh. A)].
8.14.110 Land use entitlements – Conditions.
In approving subdivision maps, conditional use permits, variances or other land use entitlements, the city may impose any or all of the following conditions for the purpose of controlling graffiti:
A. Use of anti-graffiti materials acceptable to the director on surfaces exposed to public view, a list of which such materials shall be kept on file at the building and safety department. Applicant or permittee shall supply city with graffiti removal material, such as matching paint, on demand for a period of two years from final approval or permit issuance.
B. Use of landscaping to screen or provide a barrier to surfaces prone to graffiti.
C. Right of access by city to remove graffiti.
D. Immediate removal of any graffiti by applicant or permittee. [Ord. 2010-126 § 1 (Exh. A)].
Cross-references: subdivisions, AVMC Title 14; zoning code, AVMC Title 15.
8.14.120 Encroachment permits – Conditions.
All encroachment permits issued by the city may, among other things, be conditioned by the following:
A. Use of anti-graffiti materials acceptable to the director on surfaces exposed to public view, a list of which such materials shall be kept on file at the building and safety department. Applicant shall provide the city with sufficient matching paint on demand for use in painting the encroaching object to conceal graffiti for the duration of the permit.
B. Use of landscaping to screen or provide a barrier to surfaces prone to graffiti.
C. The immediate removal by the permittee of any graffiti.
D. The right of the city to remove graffiti or to paint the encroaching object to conceal graffiti. [Ord. 2010-126 § 1 (Exh. A)].
Cross-references: encroachment and work in the public right-of-way, Chapter 10.04 AVMC; zoning code, AVMC Title 15.
8.14.130 Additional remedies – Recovery from minors.
The following additional remedies may be pursued in addition to or as an alternative to any other remedy authorized by this chapter:
A. Pursuant to California Civil Code Section 1714.1(b), any parent or legal guardian having custody or control of a minor who defaces the property of another with graffiti and any parent or legal guardian having custody or control of a minor who knowingly permits, or by insufficient control, allows the minor to possess a graffiti implement without supervision thereof shall be jointly and severally liable with such minor for any and all costs incurred in connection with the removal of any graffiti caused by the minor, including all abatement costs, attorneys’ fees and court costs resulting from the civil prosecution of any claim for damages, not to exceed $25,000. The city shall be entitled to seek full cost recovery from the parent or legal guardian of a minor found to be guilty of violating any provision of this chapter.
B. Pursuant to California Government Code Section 38772, the city may make the expense of abatement of graffiti committed by minors: (1) a personal obligation of the minor causing the graffiti and a personal obligation of the parent or guardian having custody and/or control of the minor; and (2) a lien against the property of the minor or a lien against the property of the parent or guardian having custody and/or control of the minor. Pursuant to California Government Code Section 38772(d)(1), the “expense of abatement” includes, but is not limited to, court costs, attorneys’ fees, costs of removal of the graffiti or costs of repair and replacement of defaced property, and the law enforcement costs incurred by the city in identifying and apprehending the minor or other person.
C. In accordance with California Government Code Section 38772(c), the county probation officer shall be requested to report the names and addresses of the parent or guardian having custody and control of the responsible minor to the city clerk.
D. Should the city be required to abate any graffiti committed by a minor, the director shall track and account for the abatement costs, including all labor, materials, legal and other administrative costs associated with the removal of graffiti.
E. The city shall provide notice to the minor or parent or guardian having custody of the minor of the abatement costs and proposed lien assessment against property owned by the minor or the parent or guardian having custody of the minor, which shall be substantially similar in form and content to the notice of lien described in AVMC 8.14.080(B). If the minor or parent or guardian having custody of the minor desires to protest the lien assessment, he or she may do so by requesting an informal hearing before the city manager in writing within two calendar days of the date appearing on the notice of the abatement costs and lien assessment. The city manager shall render a final decision on the assessment in writing within five calendar days and mail it by first class mail to the person protesting the lien assessment. The person protesting the lien assessment shall then have five calendar days to appeal the city manager’s decision to the city council. The appeal shall be in writing.
F. The notice of the abatement costs and proposed lien assessment against property shall be served in the same manner as a summons in a civil action in accordance with the requirements of the California Code of Civil Procedure. If after diligent search, the minor, parent or guardian, as the case may be, cannot be found, the notice may then be served by: (1) posting a copy of the notice in a conspicuous place upon the property owned by the applicable party for a period of 10 days; and (2) the notice shall be published in a newspaper of general circulation published in the county in which the property is located pursuant to California Government Code Section 6062.
G. The city council shall have the authority to adopt a resolution confirming the lien assessment, which, following adoption, shall be recorded by the city clerk in the county recorder’s office in which the parcel of land is located pursuant to California Government Code Section 38773.2(c). From date of recording, the lien shall have the force, effect and priority of a judgment lien. If the lien assessment is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge shall be recorded by the city. The lien assessment and the release of the lien shall be indexed in the grantor-grantee index. The city may also recover from the minor, parent or guardian of the minor any costs incurred regarding the processing and recording of the lien in the event the county recorder’s office imposes a fee upon the city for processing and recording the lien. The assessment may be satisfied through foreclosure in an action brought by the city. The city shall provide notice to the minor, parent or guardian of its foreclosure action to enforce the lien.
H. Pursuant to California Government Code Section 38773.2(d), the resolution confirming the abatement lien shall specify the amount of the lien; the name of the agency on whose behalf the lien is imposed; the date of the city council abatement order; the street address, legal description, and assessor’s parcel number; and the name and address of the recorded owner of the parcel.
I. As an alternate lien abatement procedure to that procedure set forth in California Government Code Section 38773.2, the city council also establishes the following optional lien abatement procedure resulting in a special assessment against a parcel of land owned by a minor or parent or guardian having control of the minor for the abatement of any nuisance resulting from the defacement by the minor of property of another by graffiti. This optional lien procedure is established pursuant to California Government Code Section 38773.6. 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. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment. However, 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 encumbrance for value has been created and attaches thereon prior to the date on which the first installment of the taxes would become delinquent, then 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. Any notices or instruments relating to the abatement proceeding or special assessment shall be recorded by the city clerk. [Ord. 2010-126 § 1 (Exh. A)].
8.14.140 Violation – Additional penalties.
A. Community Service Requirement. Upon the conviction of any person for the application of graffiti, the city shall request the court to order the person to complete community service not to exceed 100 hours for the first conviction. Upon the second and subsequent conviction of any person for the same offense, the city may request the court to order the person to complete community service not to exceed 200 hours.
B. Graffiti Removal. Upon the conviction of any person for the application of graffiti, the city shall request the court to order the person to perform the necessary labor to clean up, repair or replace the property damaged by that person.
C. Driving Privilege Suspension. In accordance with California Vehicle Code Section 13202.6, upon the conviction of any person for the application of graffiti committed while the person was 13 years of age or older in violation of California Penal Code Section 594, the city may request the court to suspend the person’s driving privilege for one year. If the person convicted does not yet have the privilege to drive, the city may request that the court order the California Department of Motor Vehicles to delay issuing the privilege to drive for one year subsequent to the time the person becomes legally eligible to drive. For each successive offense, state law requires that the court suspend the person’s driving privilege for those possessing a driver’s license or delay the eligibility for those not in possession of a driver’s license at the time of their conviction for one additional year.
D. California Welfare and Institutions Code Section 742.16 shall apply if the person convicted for the application of graffiti under this chapter is a minor. [Ord. 2010-126 § 1 (Exh. A)].
Cross-reference: violations and penalties generally, Chapter 1.06 AVMC.