VII. Offenses By or Against Minors
Chapter 9.58
GRAFFITI ABATEMENT
Sections:
9.58.040 Implement possession by minors.
9.58.050 Implement possession in designated public places.
9.58.060 Furnishing to minors prohibited.
9.58.100 Appeal of cost of removal.
9.58.130 Abatement through civil or criminal proceedings.
9.58.010 Purpose.
It is the purpose and intent of the city council of the city through the adoption of this chapter, to provide additional enforcement tools to protect public and private property from acts of vandalism and defacement, especially, but not limited to graffiti on privately and publicly owned walls which are inimical and destructive of the rights and values of private property owners as well as the total community. The power of graffiti to create fear within the community and blight upon the landscape, devaluing property and detracting from the sense of community enjoyed by the residents of the city is beyond the cost and cleanup or removal. Not only is graffiti a property crime, but a social crime on the quality of life and freedom from intimidation citizens deserve within their neighborhood. (Ord. 94-7 § 2 (part), 1994)
9.58.020 Definitions.
As used in this chapter, the following terms shall have the meanings set forth herein:
A. “Aerosol paint container” means any aerosol container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint or other substance capable of defacing property.
B. “Felt tip marker” means any marker or similar implement with a tip which, at its broadest width, is greater than four millimeters, containing an ink or other pigmented liquid.
C. “Graffiti” means any unauthorized inscription, word, figure, or design that is marked, etched, scratched, drawn or painted on any surface, regardless of the nature of the material of that structural component.
D. “Graffiti implement” means an aerosol paint container, a felt tip marker, gum label or a paint stick or etching tool capable of scarring glass, metal, concrete or wood.
E. “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.
F. “Paint stick” or “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 four millimeters of an inch in width. (Ord. 94-7 § 2 (part), 1994)
9.58.030 Unlawful to apply.
It is unlawful for any person to apply graffiti on any publicly or privately owned structure located on publicly or privately owned real property within the city limits. (Ord. 94-7 § 2 (part), 1994)
9.58.040 Implement possession by minors.
It is unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement while upon public property, or upon private property, without the prior written consent of the owner of such private property.
The foregoing provisions shall not apply while the person is attending or traveling to or from a school at which the person is enrolled, if the person is participating in a class at said school which has, as a written requirement of said class, the need to use any graffiti implement. (Ord. 94-7 § 2 (part), 1994)
9.58.050 Implement possession in designated public places.
No person shall have in his or her possession any graffiti implement while doing any activity in any public park, playground, swimming pool, recreational facility, or while loitering in or near any underpass, bridge abatement, storm drain, and other similar types of infrastructure not normally used by the public, except as they may be used in planned, adult supervised activities. (Ord. 94-7 § 2 (part), 1994)
9.58.060 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, any felt tip marker or graffiti implement to any person under the age of eighteen years without the consent of the parent or other lawfully designated custodian of the person, which custodial consent shall be given in advance in writing. (Ord. 94-7 § 2 (part), 1994)
9.58.070 Control.
Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol containers or wide-tipped marker pens exceeding four millimeters in width, which contain other than a solution which can be removed with water when dry, shall store or cause such aerosol containers or marker pens to be stored in an area viewable by, but not accessible to the public in the regular course of business without employee assistance, pending legal sale or disposition of such marker pens or paint containers. (Ord. 94-7 § 2 (part), 1994)
9.58.080 Signs required.
Any person engaged in the retail sale of aerosol or pressurized containers of paint and/or wide-tipped marker pens exceeding four millimeters in width, containing anything other than a solution which can be removed with water when dry, shall display at the location of retail sales a sign clearly visible and legible to employees and customers which states as follows:
It is unlawful for any person to sell, lend or give to any individual under the age of eighteen (18) years, who is not accompanied by a responsible adult, an aerosol or pressurized container of paint or wide-tipped marker pens exceeding four (4) millimeters in width, containing anything other than a solution which can be removed with water when dry. (Ord. 94-7 § 2 (part), 1994)
9.58.090 Removal.
A. General. Any person applying graffiti within the city shall have the duty to remove same in a manner approved by the city and the property owner within twenty-four hours after notice by the city or public or private owner of the property involved. Failure of any person to so remove graffiti shall constitute an additional violation of this chapter. Consistent with Civil Code Section 1714.1, where graffiti is applied by minors, the parent or guardian shall be responsible for such removal or payment of costs thereof.
B. Public Property. Whenever the city manager or the designated representative determines that graffiti exists upon property owned by the city, it shall be removed as soon as possible. When the property is owned by a public entity other than the city, the removal of the graffiti may be authorized by the city manager or representative, and removal undertaken by the city only after securing written consent of the entity having jurisdiction over the property. The public entity shall execute a release and waiver as approved by the city’s risk manager.
C. Notice of Affected Area; Requirement to Remove.
1. Where graffiti is located upon private property and said graffiti is capable of being viewed by persons utilizing any public right of way or sidewalk within the city, it is the property owner’s duty to remove said graffiti promptly from the property and to restore said property at least to the condition it was in prior to such act of vandalism. If the property owner fails to promptly remove said graffiti, the city shall cause a written notice to be served upon the owner of the affected property notifying the owner of the location and description of the graffiti and of the property owner’s obligation to remove said graffiti. It shall be the responsibility of the property owner to commence removal of the graffiti described in the notice within fifteen days of service or personal delivery of the notice, and to diligently and promptly pursue total removal of said graffiti. The service is complete at the time of deposit of the notice in the U.S. mail or by personal delivery of the notice to the owner of the property subject to removal of graffiti. The failure of any person to receive such notice shall not affect the validity of any proceeding.
2. Undue Hardship; Optional Procedure for Removal. In the event the property owner cannot comply with the requirements of this chapter, the property owner shall file a written request for waiver of the removal requirement with the city. The property owner shall explain his/her reason for making such request. The written request shall be filed within the fifteen day removal period stated in subsection (C)(1) of this section. In determining whether the request for waiver will be granted, and subsequent assistance provided to the property owner in removal of said graffiti, the city shall consider the following circumstances:
a. The cost of restoring the property to its original state prior to the imposition of the graffiti in proportion to the relative value of the property;
b. The ability of the owner to pay for such removal;
c. Whether or not the property has been the target of previous incidents of graffiti or whether a pattern of vandalism to such property exists.
The decision of the city in the form of a written decision by the city manager, as to whether or not to grant the waiver, shall be final.
3. City’s Release From Liability. A written request to waive the requirements of subsection (C)(1) of this section shall be accompanied by a release from liability form signed by the property owner which shall release the city and its authorized agents from any and all liability that may be caused or attributed to removal of graffiti from the owner’s premises by persons acting under the authorization of the city.
4. Approval for City to Remove Graffiti. A written request to waive the requirements of subsection (C)(1) of this section accompanied by a signed release from liability form shall constitute an express approval by the property owner that the city or its authorized representatives may provide for the removal of the graffiti on owner’s property by persons acting under the authorization of the city.
5. Failure to Remove Graffiti or Seek Waiver of Removal. In the event the owner fails to remove graffiti from his/her property and fails to request a waiver of such removal, or such waiver has been denied, the city may declare the property a public nuisance and the city may take any of the following courses of action:
a. Administrative Procedure to Abate Nuisance. City may direct the removal of graffiti from the property with the cost of work performed and billed to the property owner who may select the option of direct payment of such cost. Failure to make direct payment for the abatement of graffiti shall constitute a special assessment against the respective lot or parcel plot to which it relates. 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. Upon completion of the graffiti abatement work, the city manager shall cause to be recorded in the office of the recorder of Tulare County, a notice of completion of graffiti abatement proceedings against a particular parcel involved. The notice of completion of graffiti abatement proceedings shall have the effect when recorded of conclusively establishing that graffiti abatement proceedings have been completed and that all necessary charges incurred on account thereof by the city are due and owing and constitute a special assessment against the subject real property. The notice shall specify the name for the current owner of the parcel as shown on the last equalized assessment rolls of the county of Tulare, and the Tulare County assessor’s parcel number for the parcel involved.
b. The city may commence proceedings to abate a public nuisance under applicable laws of the state of California and/or the provisions of this code. (Ord. 94-7 § 2 (part), 1994)
9.58.100 Appeal of cost of removal.
A property owner shall have fifteen days from the date of mailing by the city of the bill for the cost of removal of graffiti from the owner’s property. Said appeal must be submitted in writing to the city clerk. Upon receipt of the written appeal, the city clerk shall schedule a hearing before the city council. The city manager shall be so notified and shall submit a written report to the city council, with a copy to the appealing party, setting forth justifications for the description of the work done and the cost thereof. The city clerk shall notify the party appealing of the date and time of the hearing before the city council, at least ten days in advance of such hearing. At the time and place of such hearing, the city manager shall present his report and the appealing party shall present any and all information in opposition to the calculation of the cost of removal. At the conclusion of the hearing, the city council shall determine what cost, if any, is to be imposed upon the appealing party. (Ord. 94-7 § 2 (part), 1994)
9.58.110 Responsibility.
Any individual who is found guilty of violating any provision of this chapter shall pay restitution to the property owner, in addition to authorized penalties. If the violator is a minor, the parent or guardian shall be responsible for payment of restitution. If unable to pay, the juvenile may be permitted to work off his/her payment under the direction of at least one parent by painting out any graffiti. In the event that the actual graffiti has previously been removed, said individual may work off cost by removing a similar type and amount of graffiti in the discretion of the city manager. City declares that it is the policy to encourage work rather than monetary payment. (Ord. 94-7 § 2 (part), 1994)
9.58.120 Penalties.
A. It is unlawful to apply graffiti on any premises as described herein. Notwithstanding the classification of a violation of the chapter as a misdemeanor, at the time as action is commenced to enforce the provisions of this chapter, the trial court, upon recommendation of the prosecuting attorney, may reduce the charged offense from a misdemeanor to an infraction.
B. It is unlawful and an infraction for a minor to possess any aerosol paint container or wide-tipped marker pen as described herein in violation of Section 9.58.040.
C. Any person convicted of a misdemeanor under this chapter shall be punished by (1) a fine not exceeding five hundred dollars and/or thirty days in the county jail for a first violation; (2) a fine not exceeding one thousand dollars and/or ninety days in the county jail for a second violation of this chapter within one year; and (3) a fine not exceeding two thousand five hundred dollars and/or six months in the county jail for each additional violation of the chapter within one year.
D. Any person convicted of an infraction under this chapter shall be punished by (1) a fine not exceeding fifty dollars for a first violation; (2) a fine not exceeding one hundred dollars for the second violation of this chapter within one year; and (3) a fine not exceeding two hundred fifty dollars for each additional violation of this chapter within one year. Each day that a violation continues shall be regarded as a new, separate offense. (Ord. 94-7 § 2 (part), 1994)
9.58.130 Abatement through civil or criminal proceedings.
Nothing in the foregoing sections shall be deemed to prevent the city from commencing a civil or criminal proceeding to abate a public nuisance under applicable civil or penal code provisions as an alternative to the proceedings set forth herein. (Ord. 94-7 § 2 (part), 1994)
9.58.140 Graffiti reward.
A. Authorization. A reward in an amount established by resolution of the city council may be authorized, altered and may be paid by the city to any person who provides information leading to the determination of the identity of, the apprehension of, and conviction of any person who willfully or maliciously paints, marks or defaces any public or private structure located on private or public property within the city.
The exact amount of five hundred dollars to be paid by the city shall be determined by the city council after receipt of a report from the city administrator, indicating that information was received leading to the determination of the identity, apprehension and conviction of a person who willfully or maliciously painted, marked or defaced a structure located on public or private property located within the city, and indicating the final disposition of each matter. No law enforcement officer, municipal officer, official or employee of the city shall be eligible for such reward.
B. Repayment by Violators. Any person violating the provisions shall pay the city the amount of any reward paid pursuant to this section, and if such person is an unemancipated minor, such minor’s parents or guardian are so liable and shall pay the amount of any reward to the city. Failure to pay any amount demanded by the city pursuant to this section within thirty days of written demand therefor shall itself be a violation of the provisions of this section. (Ord. 94-7 § 2 (part), 1994)