Chapter 5.68
GRAFFITI
Sections:
5.68.040 Graffiti on public property—Removal required.
5.68.050 Graffiti on private property—Removal required—Declaration of public nuisance.
5.68.060 Notice and order to abate graffiti.
5.68.080 Remedy—Criminal enforcement.
5.68.090 Remedy—Abatement by the city.
5.68.100 Remedy—Civil litigation.
5.68.110 Alternative remedies.
5.68.130 Administrative hearing.
5.68.140 Appeal to City Council.
5.68.150 Procedure for hearing by City Council.
5.68.160 Record of cost of abatement.
5.68.170 Recovery of abatement expenses.
5.68.010 Definitions.
“City” means the city of Dublin.
“City Manager” means the City Manager or his/her designee(s).
“Graffiti” means any inscription, word, figure, marking or design that is marked, etched, scratched, drawn or painted on any building, structure, fence, wall, automobile, fixture or other improvement, whether permanent or temporary, whether public or private, without the consent of the owner of the property or the owner’s authorized agent, that is viewable from any public right-of-way, any neighboring property, or any area generally accessible to the public.
“Incidental expenses” means and includes, but is not limited to, personnel costs, both direct and indirect; costs incurred in documenting the graffiti; the actual expenses and costs of the city in the preparation of notices, specifications and contracts, and in inspecting the work; and the costs of printing and mailing required hereunder.
“Owner” means any person owning property, as shown on the last equalized assessment roll for city taxes.
“Person” means any individual, partnership, corporation, association or other organization, however formed.
“Tenant” means any person who is not the owner, who has control or possession of property. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.020 Purpose.
The purpose of this chapter is to provide for the prompt abatement of graffiti from public and private properties in the city, and to encourage citizens to report occurrences of graffiti vandalism within the city. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.030 Service.
A. For the purposes of this chapter, service of required notices, orders, decisions and other documents shall be made in the following manner:
1. By personal service; or
2. By first-class U.S. mail, postage prepaid, to the owner of the property at the address shown on the last equalized assessment roll, and to any known tenant at the address of the property. Service by mail shall be effective on the date of mailing.
Should no address for the owner of the property appear on the assessment roll, and should the city be unable to locate the owner to deliver the document by personal service, service may be made by posting a copy of the notice and order to abate prominently and conspicuously upon the property where the condition exists.
B. The failure of any person to receive such notice shall not affect the validity of any proceeding. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.040 Graffiti on public property—Removal required.
Whenever the City Manager 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 and removal undertaken by the city only after securing written consent of the public entity having jurisdiction over the property. The cost, including incidental expenses, of abating graffiti shall be billed to the property owner and shall be due and payable thirty (30) days thereafter. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.050 Graffiti on private property—Removal required—Declaration of public nuisance.
A. Where graffiti exists on private property, it is the owner’s duty, as well as the duty of any tenant on the property, to remove the graffiti promptly from the property and to restore the property to the condition it was in prior to such vandalism.
B. Graffiti is a public nuisance. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.060 Notice and order to abate graffiti.
A. Upon the failure of a property owner and/or tenant to remove graffiti from his/her real or personal property, the City Manager shall serve on the owner and/or tenant a notice and order to abate graffiti in accordance with the provisions of Section 5.68.030. The notice and order to abate graffiti shall state:
1. A description and the location of the real or personal property on which the graffiti has been placed;
2. A brief description of the unlawful graffiti that must be removed;
3. A statement that the graffiti constitutes a public nuisance;
4. A specific date by which the graffiti must be removed;
5. A statement that if the owner does not remove the graffiti within this time, the city may cause the graffiti to be removed and make the costs incurred in this work a personal debt of the property owner and/or tenant, or a special assessment against the property;
6. A statement that the owner and/or tenant may appeal the notice and order to abate graffiti to the City Manager, by complying with the procedures set forth in Section 5.68.130, and that if the property owner and/or tenant does not file a timely request for a hearing, he/she shall be deemed to have waived the right to any administrative hearing and appeal.
B. It shall be the responsibility of the owner and/or tenant to commence removal of the graffiti described in the notice within seven (7) days of service of the notice, and to diligently and promptly pursue total removal of the graffiti. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.070 Violation.
A. Any person, firm, or corporation violating, or causing or permitting to be violated, any of the provisions of this chapter shall be deemed guilty of an infraction.
B. Any person, firm, or corporation convicted of an infraction under the provisions of this chapter shall be punishable as provided in Government Code Section 36900. Any violation beyond the third conviction within a one (1) year period may be charged by the District Attorney as a misdemeanor and the penalty for conviction of the same shall be a fine or imprisonment or both not to exceed the limits set forth in California Penal Code Section 19.
C. Each person, firm, or corporation shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued or permitted by such person and shall be punishable accordingly.
D. The City Manager shall have the power to designate by written order that particular officers or employees shall be authorized to enforce particular provisions of this chapter. Officers or employees so designated shall have the authority to arrest persons who violate any of said provisions. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.080 Remedy—Criminal enforcement.
If the owner and/or tenant fails to correct the violation(s) within the time specified in the notice and order to abate graffiti the City Manager may request the City Attorney, or his/her designee, to prosecute the matter as a criminal offense. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.090 Remedy—Abatement by the city.
A. If graffiti is not abated as ordered within the abatement period the City Manager shall cause the same to be abated by city employees, or private contract. Absent consent to enter the subject property for the purpose of abatement the City Manager shall direct the City Attorney to obtain the necessary judicial authority for entry and abatement purposes. The cost, including incidental expenses, of abating graffiti shall be billed to the owner and/or tenant and shall become due and payable thirty (30) days thereafter.
B. A person shall not obstruct, impede, or interfere with the City Manager, or his/her representative, or with any person who owns, or holds any interest or estate, in any property in the performance of any necessary act preliminary to or incidental to carrying out an abatement order issued pursuant to this chapter. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.100 Remedy—Civil litigation.
If the owner, or tenant, fails to correct the violation(s) within the time specified in the notice and order to abate graffiti the City Manager may request the City Attorney to apply to such court, or courts, as may have jurisdiction to grant such relief as will abate the public nuisance, or restrain and enjoin any person from creating or maintaining a nuisance. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.110 Alternative remedies.
Nothing in this chapter shall be deemed to prevent the Council from ordering the commencement of a civil proceeding to abate graffiti pursuant to applicable law or from pursuing any other remedy available under applicable law including but not limited to abatement of the graffiti by the city at the expense of the person or persons responsible for creating the graffiti, pursuant to Government Code Section 38772. Violation of the provisions of this chapter constitutes an infraction. The City Manager is designated as the enforcement authority. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.120 Attorneys’ fees.
The rules governing the recovery of attorneys’ fees for nuisance abatement actions or proceedings shall be those provided in Section 1.04.062. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part))
5.68.130 Administrative hearing.
A. If, after receiving a notice and order to abate graffiti, the owner and/or tenant believes:
1. That his/her property does not contain graffiti; or that
2. Compliance with the notice and order to abate will create an undue hardship, he/she may obtain an administrative hearing before the City Manager regarding the notice and order to abate graffiti by filing a written request for the hearing with the Community Development Department.
B. The request shall be filed within seven (7) days of service of the notice and order to abate graffiti and shall state:
1. The address and/or a brief description of the property;
2. The date of the notice and order to abate graffiti;
3. The grounds on which the notice and order is contested (no graffiti present, or undue hardship).
C. The Community Development Department shall then set the matter for a hearing before the City Manager on a date which is no less than ten (10) calendar days and no more than thirty (30) calendar days after the receipt of the request for a hearing and shall give the property owner or other person requesting the hearing written notice of the date, time and place of the hearing through the procedures set forth in Section 5.68.030.
D. Unless otherwise continued for good cause, the hearing shall be held at the date, time and place specified by the Community Development Department in the notice served on the property owner. With the consent of both parties, the appeal hearing may be conducted by telephone. At the hearing, the property owner and/or tenant shall have the right to be represented by counsel and may present relevant evidence and arguments in favor of modifying or reversing the notice and order to abate graffiti. In lieu of appearing at the hearing, the property owner and/or tenant may also submit a written statement signed under penalty of perjury which states any evidence or arguments in favor of modifying or reversing the notice and order to abate graffiti.
E. In determining whether the request for waiver because of undue hardship will be granted, and subsequent assistance provided to the property owner to remove graffiti, the city shall consider the following circumstances:
1. The cost of restoring the property to its original state prior to the imposition of the graffiti;
2. The relative value of the property, as indicated by the most recent appraisal by the County of Alameda;
3. The ability of the owner to pay for such removal or retrofit.
F. Within ten (10) days after the conclusion of the hearing, the City Manager shall issue a written decision on the notice and order to abate graffiti which shall be served in accordance with Section 5.68.030. The decision shall state the following:
1. Whether the order is upheld, reversed or modified, along with specific factual findings upon which this decision is based;
2. The nature of any modifications to the order;
3. Unless the order is reversed, a specific date by which the graffiti must be removed and a brief description of the graffiti, including its location.
G. The determination of the City Manager after the hearing shall be appealable only to the City Council. (Ord. 32-08 § 1 (part))
5.68.140 Appeal to City Council.
A. The owner and/or tenant may appeal the City Manager’s findings to the City Council. Any appeal to the City Council must be in writing, and must be made within fifteen (15) days from the date of service of the decision of the City Manager. The request for an appeal to the City Council shall be addressed to the City Manager and shall be deemed served only when received by the city. Failure to properly serve the request for appeal to the City Council within the fifteen (15) day period shall be deemed a waiver of the right to appeal the matter to the City Council and the decision of the City Manager shall become final.
B. As soon as practicable after receiving the appeal, the City Clerk shall set a date for the Council to hear the appeal which date shall be not less than seven (7) calendar days nor more than thirty (30) calendar days from the date the appeal was filed. The City Clerk shall give each appellant written notice of the time and the place of the hearing at least five (5) calendar days prior to the date of the hearing, either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at his address shown on the appeal. At the time set for the appeal hearing, the City Council shall either affirm, modify or reverse the decision of the City Manager. Continuances of the hearing may be granted by the Council on request of the owner for good cause shown, or on the Council’s own motion. The decision of the City Council shall be final. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part). Formerly 5.68.130)
5.68.150 Procedure for hearing by City Council.
A. All hearings shall be tape recorded.
B. Hearings need not be conducted according to the technical rules of evidence.
C. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.
D. Oral evidence shall be taken only on oath or affirmation.
E. Irrelevant and unduly repetitious evidence shall be excluded. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part). Formerly 5.68.140)
5.68.160 Record of cost of abatement.
The City Manager shall keep an account of the cost, including incidental expenses, of abating on each separate lot or parcel of land where the work is done by the city and shall render an itemized report in writing to the City Council showing the cost of abatement or retrofitting, including the rehabilitation, demolition or repair of the property, including any salvage value relating thereto. A copy of the report and notice shall be served upon the owners of the property and/or tenants in accordance with the provisions of Section 5.68.030 at least five (5) calendar days prior to submitting the same to the City Council. Proof of the posting and service shall be made by affidavit filed with the City Clerk. The Council may make such modifications to the report as it may deem necessary, after which such report shall be confirmed by resolution. (Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part). Formerly 5.68.150)
5.68.170 Recovery of abatement expenses.
The procedures governing the recovery of the city’s costs of abating graffiti shall be those provided in Section 1.04.061. (Ord. 32-08 § 1 (part))
5.68.180 Notice of lien.
Such notice of lien for recordation shall be in form substantially as follows:
NOTICE OF LIEN
(Claim of City of Dublin)
Pursuant to the authority vested by the provisions of Section _________ of Dublin Ordinance No.____, the City Manager of the City of Dublin did on or about the _____ day of ________, _____, cause graffiti on the property hereinafter described to be removed in order to abate a public nuisance on said real property; and the City Council of the City of Dublin did on the _____ day of ______, _____, assess the cost of such graffiti removal upon the parcel of land hereinafter described; and the same has not been paid nor any part thereof; and that said City of Dublin does hereby claim a lien on such parcel of land in the amount of said assessment, to wit: the sum of $______; and the same shall be a lien upon said real property until the same has been paid in full and discharged of record.
The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Dublin, County of Alameda, State of California, and particularly described as follows:
(description)
Dated this _____ day of ______, ___.
_____________________________
City Manager
City of Dublin
(Ord. 32-08 § 1 (part): Ord. 3-97 § 1 (part). Formerly 5.68.170)