Chapter 8.38
GRAFFITI ABATEMENT
Sections:
8.38.020 Purpose and authority.
8.38.040 Declaration of public nuisance.
8.38.070 Criminal enforcement and penalties for violation.
8.38.090 Administrative enforcement and notice to remove graffiti.
8.38.100 Graffiti removal program.
8.38.110 Recovery of costs of graffiti removal and graffiti abatement.
8.38.120 Imposition of liens and special assessments.
8.38.130 Violations/additional penalties.
8.38.140 Reward for information.
8.38.010 Title.
This chapter shall be known as the “graffiti abatement ordinance.” (Ord. 669-2009 § 1 (part), 2009)
8.38.020 Purpose and authority.
The city council establishes the procedures set forth in this chapter for addressing graffiti abatement pursuant to Government Code Sections 38771 through 38775, inclusive, Sections 53069.3, 53069.4, and 54988; Penal Code Sections 594 through 594.8, inclusive, and Sections 640.5, and 640.6; and Welfare and Institutions Code Sections 742 through 742.22, inclusive, as these sections may be amended from time to time, and all other statutes and laws referenced herein. The existence of graffiti on both public and private property is often associated with criminal activity and juvenile delinquency and creates a condition of blight that results in the deterioration of property values, business opportunities and general enjoyment of life for adjacent and surrounding properties, all to the detriment of the city. It is the purpose and intent of the Cloverdale city council, through the adoption of this chapter, to promote the public health, safety, and welfare of city residents and to protect property within the city by providing a program for removal of graffiti from walls and structures on both public and private property, and to establish regulations designed to prevent and control the further spread of graffiti in the city. (Ord. 669-2009 § 1 (part), 2009)
8.38.030 Definitions.
The following terms and phrases, whenever used in this chapter, shall be construed as defined in this section:
“City” means the city of Cloverdale and “city council” means the Cloverdale city council.
“City official” means any person authorized or directed by the city manager to enforce any provision of this chapter, including any peace officer.
“Costs of graffiti abatement” includes, but is not limited to, court costs, attorney’s fees, costs of graffiti removal, costs of repair and replacement of defaced property, costs of administering and monitoring the participation of a defendant and his or her parent(s) or guardian(s) in a graffiti abatement program, and the law enforcement costs incurred by the city in identifying and apprehending the minor or other person who created, caused or committed the graffiti on property within the city.
“Costs of graffiti removal” includes, but is not limited to, the costs of all materials and supplies used to cover, repair and/or replace property defaced by graffiti; city staff time incurred in covering, repairing and/or replacing the defaced property; city staff time incurred in training and/or supervising volunteers or persons ordered by a court under a graffiti abatement program to cover, repair, and/or replace defaced property; and attorney’s fees incurred in pursuing enforcement under this chapter.
“Custody” means either legal custody or physical custody of a minor.
“Days” means consecutive calendar days.
“Graffiti” means any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted in public view on any real or personal property within the city. “Unauthorized” as used here means done without the prior consent of the property owner and does not include consent given after the fact or subsequent acquiescence.
“Graffiti abatement” means graffiti removal, repair and replacement of defaced property, administering and monitoring the participation of a defendant and his or her parent(s) or guardian(s) in a graffiti abatement program, and identifying and apprehending a minor or other person who created, caused or committed the graffiti on property within the city.
“Graffiti removal” means covering and/or removing of graffiti from and repair and/or replacement of public or private property defaced by graffiti.
“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 Sections 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code, or a minor convicted by final judgment of a violation of Sections 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code, or a minor declared a ward of the juvenile court pursuant to Section 602 of the Welfare and Institutions Code by reason of the commission of an act prohibited by Sections 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code, as these sections may be amended from time to time.
“Property owner” means the owner(s) of record of real or personal property located within the city that has been defaced with graffiti or other inscribed material, or the person(s) having a right of present possession of the affected property, if other than the owner, including, without limitation, tenant(s), subtenant(s), lessee(s), sublessee(s), or assignee(s) with primary responsibility or control over the affected property, or with primary responsibility for maintenance and repair of the property, and shall include any authorized agent(s) of all such person(s).
“Public view” means any public or private area that is open to view by persons from the public roadway, sidewalk or common area. (Ord. 669-2009 § 1 (part), 2009)
8.38.040 Declaration of public nuisance.
Pursuant to the city’s police powers authorized in Article XI, Section 7 of the California Constitution, as well as under Chapter 1.10 and Sections 1.10.040 and 8.02.020 of this code and other provisions of California law, including, but not limited to, California Government Code Sections 38771 through 38775, inclusive, as these sections may be amended from time to time, the city council hereby declares that violation of this chapter, including but not limited to the existence of graffiti on public or private property, either real or personal, constitutes a public nuisance. (Ord. 669-2009 § 1 (part), 2009)
8.38.050 Prohibited acts.
It shall be unlawful for any property owner to permit graffiti to remain upon his or her property or to maintain any structure affixed to such property with graffiti on such structure or any portion thereof for a period in excess of seven calendar days following service by the city of a notice to abate graffiti. Each day the graffiti is maintained beyond the initial seven-day period hereby constitutes a separate offense and is subject to the penalties set forth in Sections 8.38.070 through 8.38.130. (Ord. 669-2009 § 1 (part), 2009)
8.38.060 Graffiti removal.
Any property owner who has been served with a notice to remove graffiti shall either provide consent and an executed release and waiver pursuant to Section 8.38.110 or remove or completely cover the graffiti in a manner that renders the graffiti not visible to public view within seven days of service of the notice. Removal of graffiti in accordance with this section must satisfy the following requirements: when graffiti is painted over, the color used to paint it over shall match the original color of the surface as closely as possible, or the entire surface shall be repainted with a new color that is aesthetically compatible with existing colors and architecture. The removal shall not leave shadows and shall not follow the pattern of the graffiti such that letters or similar shapes remain apparent on the surface after graffiti markings have been removed. If the area is heavily covered with graffiti, the entire surface shall be repainted. (Ord. 669-2009 § 1 (part), 2009)
8.38.070 Criminal enforcement and penalties for violation.
It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this chapter.
In addition to recovery of any costs of graffiti removal and graffiti abatement incurred by the city, the city may issue a criminal citation for failure to voluntarily remove graffiti after notification, which shall be subject to the following penalties:
A. The failure of any property owner to remove graffiti within the prescribed seven-day period as set forth in Section 8.38.060 hereby constitutes an infraction punishable by a fine of one hundred dollars upon first conviction thereof.
B. Any person convicted of violating Section 8.38.060 a second time within a one-year period shall be guilty of an infraction punishable by a fine of two hundred fifty dollars.
C. Any person convicted of violating Section 8.38.060 a third time within a one-year period or any subsequent number of times shall be deemed guilty of an infraction punishable by a fine not exceeding five hundred dollars. (Ord. 669-2009 § 1 (part), 2009)
8.38.080 Civil penalties.
The provisions of this chapter may be enforced by a civil court action, or prosecuted by the city attorney in the name of the city or in the name of the people of the state of California. The city shall be entitled to collect its costs for prosecuting a civil action as set forth in Section 1.13.020. Civil Code Section 1714.1(b) provides that, where graffiti is applied by an unemancipated minor, the parent(s) or legal guardian(s) of the minor shall be jointly and severally liable for payment of civil damages resulting from the misconduct of the minor. The city may recover its costs in a civil action against the parent(s) or legal guardian(s) of an unemancipated minor for violations of this chapter in an amount not to exceed twenty-five thousand dollars for each such offense, or at the maximum amount set forth in Civil Code Section 1714.1(b), as that section is amended from time to time. (Ord. 669-2009 § 1 (part), 2009)
8.38.090 Administrative enforcement and notice to remove graffiti.
A. Notice to Remove Graffiti. Whenever a city official determines that graffiti exists within public view on any real or personal property in the city, a city official may cause a notice to remove graffiti to be issued to the property owner. The property owner must either remove the graffiti within seven days of the date of the notice or contact the city and give the city consent to remove the graffiti. If the property owner does not remove the graffiti or provide authorization to the city to remove the graffiti within seven days of the service of the notice to remove graffiti, then the property owner will be subject to removal by the city, including payment of the city’s costs of graffiti removal in accordance with this chapter.
The notice to remove graffiti shall contain the following information:
1. The date of issuance of the notice to remove graffiti and location of the graffiti, including the address or other description of the property where the graffiti has been inscribed;
2. The name(s) of the property owner(s), if known;
3. Notice to the property owner that he or she must either remove the graffiti within seven days of the date of the notice or contact the city and give the city consent to remove the graffiti, and that if the property owner fails to remove the graffiti or provide authorization to the city to remove the graffiti within seven days of the notice, then the property owner will be subject to graffiti removal by the city, including payment of the city’s costs of graffiti removal in accordance with this chapter.
4. A statement that the person upon whom the notice is served may appeal the determination regarding the existence of graffiti, by filing a written notice of appeal with the city manager within five days after service of the original notice to remove graffiti on the property owner, and a statement that appellants may appeal the determination regarding the existence of graffiti by asserting the party served is not the property owner, or by asserting any other lawful basis for appeal, or requesting an extension of time for graffiti removal by demonstrating good cause therefor.
5. The signature of the city official issuing the notice to remove graffiti and city contact information (address, telephone number) for additional information.
B. Service of the Notice to Remove Graffiti. The notice to remove graffiti shall be served upon the property owner(s) personally or by certified mail, first-class postage prepaid, and, if by such mail, it shall be sent to the last known address listed on the most recent tax assessor’s records. In the case of personal service, service shall be deemed complete at the time of such delivery. In the case of service by first-class mail, service shall be deemed complete at the time of deposit into the United States mail. Where service is by first-class mail, a copy of the notice to remove graffiti shall also be conspicuously posted at the affected property when reasonably practicable for a period of not less than three calendar days prior to the date that graffiti removal is to be undertaken. The failure to receive a notice to remove graffiti sent via first-class mail shall not affect the validity of any enforcement proceedings.
C. Proof of Service of Notice to Remove Graffiti. Proof of service shall be certified by a written declaration under penalty of perjury executed by the person effecting service, declaring the date, time, and manner of service, and the date and place of posting, if applicable. The declaration shall be affixed to a copy of the notice to remove graffiti and retained by the city.
D. Validity of Other Enforcement Proceedings. The failure of a notice to remove graffiti to satisfy all of the requirements of this provision shall not affect the validity of any other enforcement proceedings under this chapter.
E. Appeal of Notice to Remove Graffiti. The property owner(s) may appeal the determination regarding the existence of graffiti by filing a written notice of appeal with the city manager within five days of service of the original notice to remove graffiti on the property owner and may appeal the determination regarding the existence of graffiti by asserting the party served is not the property owner, or by asserting any other lawful basis for appeal, or requesting an extension of time for graffiti removal by demonstrating good cause therefor. The seven-day period for removal of the graffiti shall be tolled during the pendency of the appeal. The decision of the city manager may be appealed to the city council within fifteen days of the city manager’s decision by following the procedures set forth in Chapter 1.20. If a property owner files a notice of appeal to the city council pursuant to Chapter 1.20, then the provisions set forth in that chapter shall govern the appeal. (Ord. 669-2009 § 1 (part), 2009)
8.38.100 Graffiti removal program.
The city manager or his or her designee shall develop a graffiti removal program to assist property owners in the expeditious removal of graffiti from their property. The city manager is hereby authorized pursuant to Government Code Section 53069.3 to use city funds to remove graffiti through the graffiti removal program. In removing the graffiti or other inscribed material pursuant to the graffiti removal program, the use of city funds to paint or repair is limited to the area inscribed with the graffiti.
Graffiti may be removed through the city’s graffiti removal program whenever graffiti or other inscribed material is in public view on public or privately owned property within the city. Where a structure is owned by a public entity other than the city, the removal of the graffiti or other inscribed material may be authorized only if the public entity having jurisdiction over the structure consents to the graffiti removal and executes a release and waiver, approved as to form by the city attorney, and agrees to an assumption of costs incurred by the city for the removal of the graffiti or other inscribed material. Where a structure is privately owned, the removal of the graffiti or other inscribed material pursuant to this section may be authorized only after securing the consent of the owner and obtaining an executed release and waiver from the property owner approved as to form by the city attorney.
Notwithstanding any other provision of this chapter, the city shall be authorized to recover its costs of graffiti removal from private property if the property owner requests that the city remove graffiti pursuant to the graffiti removal program from the same property more than four times within a single calendar year or for an area exceeding six hundred square feet within a single calendar year.
Nothing in this chapter shall prohibit the city manager or his or her designee from waiving the provisions of this section if it can be determined that the affected property owner has demonstrated a conscientious effort to prevent graffiti from occurring on his or her property as exhibited by, but not limited to, the installation of security devices such as surveillance cameras, security lighting, sprinklers linked to motion sensors; protective or covering landscaping; graffiti-resistant building materials; or the application of graffiti-resilient paint. (Ord. 669-2009 § 1 (part), 2009)
8.38.110 Recovery of costs of graffiti removal and graffiti abatement.
The city may recover its costs of graffiti removal from the property owner for graffiti that is located on public or private property within the city that is in public view under the following circumstances:
A. If the property owner has been issued a notice to remove graffiti and has failed to either remove the graffiti or consent to allow the city to remove the graffiti pursuant to the city’s graffiti removal program.
B. If the property owner has permitted, allowed or encouraged the graffiti to be inscribed on his or her property.
C. If the city serves a notice to remove graffiti on the property owner(s), but the property owner’s consent to remove the graffiti by the city cannot be obtained, and the city removes the graffiti pursuant to proper legal authority.
D. If the property owner requests that the city remove graffiti pursuant to the graffiti removal program from the same property more than four times within a single calendar year or for an area exceeding six hundred square feet within a single calendar year.
The city may recover its costs of graffiti abatement from a minor who has defaced the property of another with graffiti, a parent or guardian having custody and control of such a minor, and any other person who has defaced the property of another with graffiti.
The city may recover its costs of graffiti removal and graffiti abatement in any manner authorized by law, including, without limitation, through liens and assessments as described in Section 8.38.120. (Ord. 669-2009 § 1 (part), 2009)
8.38.120 Imposition of liens and special assessments.
A. If the city abates the graffiti as a public nuisance, as set forth in Section 8.38.090, the city may recover, pursuant to Government Code Sections 38773 and 38773.1, the costs of graffiti removal from the property owner on whose property the graffiti or other inscribed material was abated through the assessment of a lien against the property on which the graffiti was abated. The city shall follow the procedures set forth in Section 1.14.070(A) through (C) for imposing any such lien.
B. The city may recover its costs of graffiti abatement through a lien pursuant to Government Code Sections 38772(b) and 38773.2 against the property of a minor who has defaced the property of another with graffiti, against the property of a parent or guardian having custody and control of such a minor, or against the property of any other person who has defaced the property of another with graffiti. The city shall follow the procedures set forth in Section 1.14.070(A) through (C) for imposing any such lien.
C. As an alternative to the lien procedures described in this section and authorized in Government Code Sections 38773, 38773.1 38772(b) and 38773.2, the city may recover its costs of graffiti removal through a special assessment against the real property where the graffiti was abated pursuant to Government Code Section 38773.5. The city may also recover its costs of graffiti abatement against the property of a minor who has defaced the property of another with graffiti, against the property of a parent or guardian having custody and control of such a minor, or against the property of any other person who has defaced the property of another with graffiti pursuant to Government Code Section 38773.6. The city shall follow the procedures set forth in Section 1.14.070(D) in making such costs an assessment. (Ord. 669-2009 § 1 (part), 2009)
8.38.130 Violations/additional penalties.
Violations of this chapter shall be treated as strict liability offenses regardless of intent. In addition to Sections 8.38.070 through 8.38.120, violations of this chapter may bpy enforced in any combination as permitted by Chapters 1.10 through 1.20 and 8.02 or any other enforcement and legal remedies available to the city under the law. Violations of this chapter are further subject to the following additional penalties:
A. Community Service. Penal Code Section 594(c) requires a court to order a defendant who has been convicted of an action of vandalism consisting of defacing property with graffiti to clean up, repair, or replace the damaged property or order the defendant, and his or her parents or guardians if the defendant is a minor, to keep the damaged property or another specified property in the community free of graffiti for up to one year. If the court finds that graffiti cleanup is inappropriate, the court must consider other types of community service, where feasible. Whenever any person is convicted of graffiti-related vandalism on property within the city, the perpetrator will be required to develop a community service plan, which the city manager or his/her designee will review. If the proposed community service plan is not acceptable to the city manager or his/her designee, then the city manager or his/her designee may amend the proposed community service plan or create an alternative community service plan that provides for community service commensurate with the amount of damage caused and the amount of city or other public resources expended, if applicable, to mitigate the graffiti.
B. Suspension or Delay of Driving Privileges. For each conviction of a person aged thirteen to twenty-one for violation of any state law pertaining to vandalism consisting of defacing property with graffiti, the city may petition the sentencing court to suspend existing driving privileges or delay the issuance of driving privileges in accordance with Vehicle Code Section 13202.6. (Ord. 669-2009 § 1 (part), 2009)
8.38.140 Reward for information.
The city council may, by resolution, offer and pay a reward for information leading to the apprehension and conviction of any person who places graffiti or other inscribed material upon public or privately owned property within the city. In addition to any fines levied by the city for violations of this chapter, any person who has damaged property by inscribing graffiti on public or private property shall be liable for the amount of any reward paid pursuant to this chapter and Government Code Section 53069.5. (Ord. 669-2009 § 1 (part), 2009)