Chapter 8.38
GRAFFITI CONTROL
Sections:
8.38.010 Purpose and findings.
8.38.030 Graffiti under state law.
8.38.040 Purchase or possession of graffiti implements.
8.38.050 Penalties for violations.
8.38.060 Declaration of nuisance.
8.38.070 Removal by person applying graffiti.
8.38.071 Removal of graffiti by the property owner.
8.38.080 Abatement at owner’s expense.
8.38.090 Abatement at owner’s expense – Notice to abate.
8.38.100 Abatement at owner’s expense – Hearing.
8.38.110 Abatement at owner’s expense – Costs.
8.38.120 Removal at city expense.
8.38.121 Recovery of funds from the person applying graffiti.
8.38.130 Alternative means of enforcement.
8.38.140 Reporting graffiti – Reward.
8.38.150 Graffiti prevention provisions – Design of new graffiti-attracting surfaces.
8.38.010 Purpose and findings.
A. The purpose of this chapter is to provide enforcement tools in addition to those already provided by state law for removal of graffiti and to prevent and control the further spread of graffiti on walls and structures on both public and private property in the city. It is further the intent of the city council, through the adoption of this chapter, to give notice to all who disregard the property rights of others that the city will strictly enforce all laws prohibiting graffiti, including but not limited to Sections 594, 594.1, 640.5 and 640.6 of the California Penal Code, Section 13202.6 of the California Vehicle Code, and the provisions of this chapter.
B. The city council finds:
1. Graffiti is inconsistent with the city’s property maintenance goals and aesthetic standards;
2. The increase of graffiti on both public and private property is creating a condition of blight within the city which results in deterioration of property and business values for the property tagged by the graffiti as well as the surrounding properties;
3. Graffiti is detrimental to the public health, safety and general welfare and constitutes a public nuisance which must be abated;
4. Graffiti has also been found to be associated with criminal activity and delinquency. It is also a means of identification and intimidation utilized by gangs and its presence may further gang-related activities. The proliferation of graffiti, especially gang-related graffiti, presents an imminent danger to the public safety and welfare. Law enforcement officials and other experts agree that immediate removal of gang-related graffiti is necessary to reduce the risk of violent and other criminal activities associated with gangs and gang territories. In addition, the power of graffiti to create fear within the community and blight upon the landscape, to devalue property and to detract from a sense of community enjoyed by residents and businesses in the city goes beyond the cost of clean-up or removal. Not only is graffiti a criminal act of vandalism, but it is also a social crime upon the quality of life and freedom from intimidation that citizens desire in their neighborhoods; and
5. This chapter provides an immediate and practical method for combating the effects of graffiti on publicly and privately owned structures and real property. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.020 Definitions.
“Administrative hearing officer” means the chief of police or his/her designated representative.
“Aerosol container” means any aerosol container, regardless of the material from which it was made, which is adopted or made for the purpose of spraying paint, dye, ink or other substance capable of defacing property.
“Demand for payment” means an invoice for graffiti abatement costs prepared by the city containing the location and description of defaced property, a summary of graffiti abatement actions performed, a listing of abatement costs and expenses incurred by the city, and the basis for the determination of the responsible person or offender.
“Etching solution” means any caustic cream, gel, liquid, or other solution capable, by means of a chemical action, of defacing, damaging, or destroying hard surfaces in a manner similar to acid.
“Felt tip marker” means any marker or similar implement with a tip which, at its broadest width, is greater than one-eighth inch and contains an ink, paint or other liquid that is not water soluble and that is capable of defacing property.
“Graffiti” includes any inscription, word, figure or design that is marked, etched, scratched, inscribed, marred, drawn, painted, pasted or otherwise affixed to, or on, any real property, building, structure, or facility, or any surface without the owner’s prior authorization.
“Graffiti abatement costs” include, but are not limited to, court costs, attorney’s fees, costs of removal of the graffiti or the surface to which the graffiti is attached, costs of repair and replacement of defaced property, and law enforcement costs.
“Graffiti-attracting surfaces” means any publicly viewable surfaces deemed by the city manager or his/her designee to be likely to attract graffiti.
“Graffiti implement” means an aerosol or pressurized container, a felt tip marker, gum label, paint stick, etching solution or an etching tool capable of scarring glass, metal, concrete, wood, or other graffiti-attracting surfaces.
“Gum label” means any sheet of paper, fabric, plastic or other substance with an adhesive backing which, when placed on a surface, is not easily removable.
“Paint 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 inch in width, and not water soluble.
“Parent or guardian” means the parent or legal guardian who has custody and control of a minor.
“Pressurized container” means any can, bottle, spray device or other mechanism which is designed to propel or expel liquid, ink, paint, chalk, dye or other similar substances under pressure and which contains liquid, ink, paint, chalk, dye or other similar substances capable of defacing property with permanent, indelible or waterproof liquid, ink, paint, chalk, dye or other similar substances.
“Property” means real or personal property, whether publicly or privately owned, within city limits.
“Structure” means the same as defined in the California Building Code.
“Surface” means the exposed area of any object including, but not limited to, walls, fences, sidewalks, rocks, curbs, street lamp poles, utility boxes and poles, trees, vegetation, signs, and trash receptacles. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.030 Graffiti under state law.
A. It is unlawful for any person to violate California Penal Code Section 640.6, which provides that any person who writes, sprays, scratches, or otherwise affixes graffiti on any real or personal property not his or her own is guilty of an infraction.
B. It is unlawful for any person to violate California Penal Code Section 594, which provides that any person who maliciously (1) defaces with paint or any other liquid; (2) damages; or (3) destroys any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism punishable by fine and/or imprisonment.
C. It is unlawful for any person to violate California Penal Code Section 640.5, which provides that any person who writes, sprays, scratches, or otherwise affixes graffiti on or in the facilities or vehicles of a governmental entity, whether leased or owned by the governmental entity, is guilty of an infraction.
D. It is unlawful for any person to violate California Penal Code Section 594.1, which provides that it is a misdemeanor for (1) any person to sell or furnish to any minor under the age of 18 an aerosol container, other than the parent or legal guardian of such minor; (2) any minor to purchase an aerosol container; and (3) any minor to possess an aerosol container while upon any public highway, street or alley. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.040 Purchase or possession of graffiti implements.
A. Purchase by or Furnishing to Minors. It shall be unlawful for any person under the age of 18 years to purchase any graffiti implement unless accompanied by a parent or legal guardian. It shall be unlawful 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, loaned, or otherwise furnished, any graffiti implement to any person under the age of 18 years without the prior consent of the parent or other lawfully designated guardian of the person.
B. Possession. No person shall have in his/her possession and in plain view any graffiti implement for the purpose of inscribing graffiti while upon any public right-of-way or property in the city. Public property shall include any public park, playground, swimming pool, school or recreational facility if such is posted with signs stating that it is a misdemeanor to possess graffiti implements (as defined in this chapter). This section shall not apply to any person who has received valid authorization from the governmental entity which has jurisdiction over the public area. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.050 Penalties for violations.
Unless otherwise provided by California State law, any violation of this chapter shall be a misdemeanor offense punishable by either six months in jail, a $1,000 fine, or both. Additional penalties which may be recommended to the court on an ad hoc basis:
A. Vehicle Code Section 42001.7 permits a court to require a littering offender (Vehicle Code Sections 23111, 23112 and 23113) to pick up litter or clean up graffiti;
B. Vehicle Code Section 13202.6 permits a court to suspend or delay issuance of a driver’s license for one year for each conviction of a graffiti offense;
C. Minors determined to be wards of the court under Welfare and Institutions Code Section 602 as a result of committing an offense in the city of Benicia shall be required, at the city’s request of the court, to perform community service, which may include a graffiti removal service of not less than six hours nor more than 80 hours;
D. The city may request the court, pursuant to Civil Code Section 1714.1, to hold the parent or legal guardian of a minor who violates this chapter, or the state laws mentioned herein, personally responsible for any and all costs incurred in connection with the removal of graffiti caused by said minor, including attorneys’ fees and court costs;
E. If the court does not hold the parent or legal guardian of a minor who violates this chapter, or the state laws mentioned herein, responsible for the city’s removal costs, then the city may make such costs a special assessment against a parcel of land owned by the parent or legal guardian pursuant to Government Code Section 38773.6 so long as 30 days’ prior written notice is provided to the parent or legal guardian about the anticipated special assessment if such costs are not paid to the city. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.060 Declaration of nuisance.
The city council finds and declares that the existence of graffiti anywhere within the boundaries of the city of Benicia is obnoxious and offensive, thereby constituting a public and private nuisance. Such graffiti shall be abated according to the provisions and procedures contained in this chapter. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.070 Removal by person applying graffiti.
Any person applying graffiti within the city shall have the duty to remove the same immediately, and in no event longer than 72 hours after notice by the city or the public or private owner of the property involved. Each instance of failure by any person to remove graffiti following notice shall constitute a separate violation. Every day that said graffiti is not removed, after notice, shall constitute a separate offense. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.071 Removal of graffiti by the property owner.
A. Except as otherwise provided by this section, it is unlawful for a property owner to permit property that has been defaced with graffiti to remain so defaced for a period of longer than 72 hours after notification by the city of the existence of the graffiti and the requirement to remove the graffiti. Property shall be considered no longer defaced when the graffiti is removed or the defaced area is covered with paint that is similar in shade and color to the surface upon which the graffiti is placed.
B. For the purpose of this section, notification to the property owner may be made by posting a notice on the property that has been defaced. The notice shall state that the graffiti must be removed within 72 hours unless the chief of police or his/her designee agrees that additional time for removal is reasonable considering the graffiti and the difficulty of removal. (Ord. 09-13 § 1).
8.38.080 Abatement at owner’s expense.
Graffiti located on privately or publicly owned property within the city of Benicia so as to be capable of being viewed by a person utilizing any public right-of-way may be removed by the city at the owner’s expense as a public nuisance after service of a notice to abate as herein set forth. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.090 Abatement at owner’s expense – Notice to abate.
A. Whenever the city is apprised of the presence of graffiti located on privately or publicly owned property within the city of Benicia, the city shall serve a written notice to abate such graffiti upon the owner of the affected premises as such owner’s name and address appear on the last equalized assessment roll or the supplemental roll, whichever is more current, and to the tenant, where applicable and if known to the city.
B. Contents of Notice. The notice shall be substantially as set out in Form 8.38.090 at the end of this chapter and contain substantially the following information:
1. The street address, legal description, or other description sufficient to identify the premises affected by the described graffiti;
2. The length of time permitted for voluntary abatement of the graffiti;
3. A statement that the property owner may, during the abatement period, file a written request for hearing if the owner disagrees with the demand to abate the graffiti;
4. A statement that if the graffiti is not voluntarily abated within the stated period, the city will abate the graffiti, that the costs of such abatement shall be assessed against the premises and shall be collected in the same manner as city taxes.
C. Service of Notice.
1. The notice to abate the graffiti shall be personally served in the same manner as summons in a civil action in accordance with Section 415.10 of the Code of Civil Procedure. If the owner of record, after diligent search, cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in a newspaper of general circulation published in Solano County pursuant to Government Code Section 6062.
2. The failure to make or attempt such service on any person as required herein shall not invalidate any proceedings under this chapter as to any other person duly served. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.100 Abatement at owner’s expense – Hearing.
A. A written request for hearing must be received by the administrative hearing officer or his/her designated representative within 72 hours of service of the notice. The administrative hearing officer, or designee, shall set a time and date for the hearing and notify the person requesting the hearing of the time, date, and place. The hearing shall be before the administrative hearing officer. The hearing shall be an informal opportunity for the person requesting the hearing to present his/her arguments against the requirement to abate the graffiti at his/her expense. Such arguments may include requesting the city to abate at its cost in accordance with BMC 8.38.120.
B. At the hearing, the administrative hearing officer shall render a decision, in writing, upholding or denying the requirement of abatement. If the requirement is upheld, the decision shall contain an order to abate and a deadline for abatement, and shall be served on the person requesting the hearing by U.S. mail. The decision of the administrative hearing officer may be appealed to the city council pursuant to Chapter 1.44 BMC. (Ord. 09-13 § 1; Ord. 07-39 § 1; Ord. 96-13 N.S.).
8.38.110 Abatement at owner’s expense – Costs.
A. If the graffiti is not completely abated by the owner or occupier of the premises within the time prescribed in the (1) notice to abate; (2) decision of the administrative hearing officer; or (3) decision of the city council, whichever is applicable, the city’s director of parks and community services or his/her designated representative is authorized and directed to cause the graffiti to be abated by city personnel or private contract, and the city, or its private contractor, is expressly authorized to enter upon the premises for such purposes.
B. The city’s chief of police or his/her designated representative shall keep an account of the costs and expenses, including all administrative and legal costs, in abating such graffiti and shall serve by U.S. mail a statement of such costs to the person or persons receiving the notice to abate. Such person or persons receiving the notice to abate shall be liable to the city for any and all costs and expenses to the city involved in abating the graffiti.
C. If all or any portion of the costs and expenses incurred by the city in abating the graffiti and accounted for by the city’s chief of police or his/her designated representative remains unpaid after 30 days, then pursuant to authority created by law, including Government Code Sections 38773.5, 38773.6 and 38773.7, such portion thereof as remains unpaid shall constitute and is hereby declared to constitute an assessment on the real property which was served with the notice to abate and/or the subject property. The city’s chief of police or his/her designated representative or city clerk, prior to August 10th of each year, shall deliver to the county auditor of Solano County a notice to levy the special assessment on the property for placement on the secured roll. Thereafter, the special assessment shall be collected and enforced in the same manner as municipal taxes. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.120 Removal at city expense.
Graffiti located on publicly or privately owned real property within the city of Benicia so as to be capable of being viewed by a person utilizing any public right-of-way may be removed solely at the city’s expense, without reimbursement from the property owner or assessment upon the property, upon all of the following conditions:
A. The administrative hearing officer, pursuant to a hearing under BMC 8.38.100, determines that (1) the owner of the affected property is unable to remove the graffiti due to extreme financial hardship; or (2) the same owner of the affected property has made no more than one request for such city removal at the city’s sole expense within a calendar year; and
B. In removing the graffiti, the painting or repair of a more extensive area beyond the tagged area shall not be authorized;
C. When the work is to be performed by the city, or by contract at the direction of the city, the removal of the graffiti may not proceed until the written consent of the person or entity having jurisdiction over the structure is obtained along with a release of the city from liability. Such consent and release shall be substantially as set out in Form 8.38.120 at the end of this chapter.
Nothing herein shall be construed as obligating the administrative hearing officer to require that any graffiti be abated at the sole expense of the city. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.121 Recovery of funds from the person applying graffiti.
A. Once the person applying the graffiti has been identified by the police department or other law enforcement agency and the city and/or the property owner/manager have expended funds to remove the graffiti, regardless of its location, which was caused by the identified person, the city may recover the funds in accordance with the following procedures:
1. The property owner/manager shall promptly submit an itemized statement of expenses along with appropriate documentation to the police department.
2. The police department will work in conjunction with the court and/or diversion system to submit a demand for payment, ordering payment to be made to the city within 10 days after receipt of notice. The demand for payment shall be requested during the criminal adjudication process or as part of the diversion process. The demand for payment shall also provide the offender with notice of appeal procedures.
3. If the identified offender is a minor, then pursuant to Government Code Section 53069.3(d), the police department will submit a demand for payment to the minor and the minor’s parent or guardian having custody and control of the minor, ordering payment to be made within 10 days. The demand for payment shall also provide the parents or guardian with notice of appeal procedures.
B. Appeals from the demand for payment shall be made in accordance with Chapter 1.44 BMC and must be filed within 10 calendar days from the service of the notice.
1. At the hearing, if one is requested, the minor and the parent or guardian having custody and control of the minor may each be heard and provided with the opportunity to show cause why the city should not recover funds from the offender or, if a minor, the minor and the parent or guardian having custody and control of the minor. Following the hearing, the hearing officer shall determine whether the city should recover funds from the minor and the parent or guardian having custody and control of the minor. The hearing officer may determine that the city should recover the funds if he or she finds that: (a) the offender applied the graffiti; (b) the property or structure was damaged with graffiti; (c) the property owner or city incurred costs to remove the graffiti; and (d) if applicable, whether a reward was paid in this case.
2. If the administrative hearing officer determines that the city and/or property owner/manager should recover funds from the offender or, if a minor, the minor and the parent or guardian having custody and control of the minor, the administrative hearing officer shall issue an order to that effect, and the amount shall be payable to the city. The determination of the administrative hearing officer is final.
3. Pursuant to Government Code Sections 38772, 38773.2 and 38773.6, the parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor for the funds expended by the city and/or property owner. If payment is not made within 30 days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of $100.00 plus interest on the unpaid amount, which interest shall accrue at the rate of one and one-half percent per month until paid.
4. In the event the funds have not been paid within 30 days from the date of issuing an accounting and demand for payment, the amount unpaid including any penalty and interest thereon shall constitute a lien pursuant to Government Code Sections 38772 and 38773.2 against the property of the minor and against the property of the parent or guardian having custody and control of the minor. Prior to recording a notice of lien, the city shall provide notice pursuant to Government Code Section 38773.2. Any such lien not paid by June 30th of each year may, upon adoption of a resolution by the city council, be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.
5. As an alternative to a lien and pursuant to Government Code section 38773.6, the funds shall constitute a special assessment against a parcel of land owned by the minor or by the parent or guardian having custody and control of the minor. The assessment shall be collected as provided for in Government Code Section 38773.6.
6. In addition to any other remedy provided herein or available at law, the amount owed pursuant to Government Code Section 38772 shall constitute a personal obligation against the offender or, if a minor, the minor and the parent or guardian having custody and control of the minor.
C. Funds recovered by the city on behalf of a property owner/manager shall be turned over to the property owner/manager within 10 days of receipt by the city. In the event that the full amount claimed by the property owner/manager and the city is not received, the amounts recovered shall be shared between the property owner/manager and the city on a pro rata basis. (Ord. 09-13 § 1).
8.38.130 Alternative means of enforcement.
Nothing in this chapter shall be deemed to prevent the city council from authorizing the city attorney to commence any other available civil or criminal proceedings to enjoin or abate a public nuisance under applicable provisions of state law as an alternative to proceedings set forth in this chapter. (Ord. 09-13 § 1; Ord. 96-13 N.S.).
8.38.140 Reporting graffiti – Reward.
The city may pay a reward, as established by city council resolution, to any person who provides information which satisfies the chief of police or his/her designated representative that there is probable cause to believe a specific person is responsible for the application of graffiti to property or any surface. In addition to any fines levied by the city for a violation of this chapter, any person who has damaged property by applying graffiti shall be liable for the amount of any reward paid pursuant to this chapter and Section 53069.5 of the California Government Code. If such person is an unemancipated minor, the minor’s parent or guardian is jointly and severally liable and shall pay such amounts to the city. (Ord. 09-13 § 1).
8.38.150 Graffiti prevention provisions – Design of new graffiti-attracting surfaces.
Any applicant for design review approval, conditional use permit, temporary activity permit, land development permit, site plan approval, planned development approval, development agreement, or other form of development or building permit shall, to the extent deemed feasible by the city manager or his/her designee, have designed any building structures visible from any public or quasi-public place in such a manner as to consider prevention of graffiti, including, but not limited to, the following: (A) use of additional lighting; (B) use of nonsolid fencing, where permitted; (C) use of landscaping designed to cover large expansive walls such as ivy or similar clinging vegetation; and (D) use of architectural design to break up long continuous walls or solid areas. (Ord. 09-13 § 1).
Form 8.38.090
Date:
Name
Street Address
Benicia, CA 94510
Re: NOTICE OF INTENT TO REMOVE GRAFFITI
Dear ________:
It has come to my attention that your property at ADDRESS has been tagged with graffiti. Benicia Municipal Code Chapter 8.38 requires graffiti to be removed within 72 hours after notice by the City. If you cannot remove the graffiti in this time, please contact the City at the number listed below. If you object to removing the graffiti yourself, please submit a written request for a hearing to the City’s Chief of Police within 72 hours from the date of this notice. If no such written objections are received by the City by the conclusion of this 72 hour period, the City may proceed with the abatement of the graffiti on your property at your expense without further notice.
Thank you in advance for your prompt attention to this matter. If you have any questions, please contact me at (707) 746- ____.
___________________________
(Signature of City Employee)
CITY OF BENICIA
250 East L Street
Benicia, CA 94510
Form 8.38.120
CONSENT TO ENTER PROPERTY AND HOLD HARMLESS AGREEMENT
GRAFFITI REMOVAL
We grant permission to the City of Benicia, or its authorized agents, to enter our property for Graffiti removal. We recognize that the City of Benicia can only provide for the removal or painting of the area which is the subject of the Graffiti. We waive any claims which we may have against the City arising out of this work and agree to indemnify it, its City Council, its agents, officers and employees against any claims or demands whatsoever arising out of their performance of this work.
DATE:
NAME & ADDRESS:
TELEPHONE NO.:
SIGNATURE OF PROPERTY OWNER OR TENANT:
Return to: City of Benicia
250 East L Street
Benicia, CA 94510