Chapter 9.65
ABATEMENT OF GRAFFITI
Sections:
9.65.010 Purpose and findings.
9.65.030 Declaration of public nuisance.
9.65.040 Prohibition of application of graffiti.
9.65.050 Abatement obligations.
9.65.058 Enforcement procedures.
9.65.070 Notice to abate—Hearing procedure.
9.65.080 Criminal penalty—Graffiti abatement cost recovery and parental civil liability.
9.65.090 Alternative means of enforcement.
9.65.010 Purpose and findings.
The purpose of this chapter is to provide a program and enforcement tools in addition to those already provided by state law for the removal of graffiti from property, buildings, structures, walls and places on both public and private property, and to prevent and control further spread of graffiti in the city. The city council finds and declares that graffiti on public or private buildings, structures and places creates a condition of blight within the city that tends to reduce the value of property, promotes deterioration of surrounding property, invites vandalism, and results in the loss of pride in affected neighborhoods and loss of business to neighboring commercial enterprises, all to the detriment of the city. While state law imposes criminal penalties for the application of graffiti, state law does not provide adequate means for prompt abatement and removal of graffiti.
The city council further finds and declares that the proliferation of graffiti constitutes a public nuisance that 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. The failure to immediately abate graffiti encourages the proliferation of additional graffiti which results in neighborhood blight, additional criminal activity and increased costs of abatement. Such a public nuisance therefore, constitutes an immediate threat to public health and safety that must be abated.
The city council further finds and declares that the city shall be graffiti-free and directs all city departments to adopt a policy of zero tolerance and to use all lawful means at their disposal to abate graffiti from this community.
The city council intends, through the adoption of the ordinance codified in 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, California Penal Code Sections 594, 594.1 and 640.5, California Vehicle Code Section 13202.6, and all provisions of this chapter. The city council further intends, by adoption of said ordinance to implement a graffiti eradication program to assist Folsom residents and businesses with the eradication of graffiti from public and private property. (Ord. 849 § 2(1) (part), 1996)
9.65.020 Definitions.
For purposes of this chapter, the following words and phrases shall have the meanings set forth in this section.
“Code enforcement officer” means the person designated by the city manager to abate graffiti as further set forth in this chapter.
“Graffiti” means and includes any unauthorized inscription, word, figure, mark or design that is written, marked, etched, scratched, drawn or painted on real or personal property, or on any building, structure or other facility, surface, place or thing, regardless of the nature of the material of that structural component and regardless of the content or nature of the inscription, word, figure, mark or design. (Ord. 849 § 2(1) (part), 1996)
9.65.030 Declaration of public nuisance.
The city council finds and declares that the existence of graffiti on any public or private property within the incorporated area of the city constitutes a public nuisance that presents an imminent danger to the public safety and welfare, and that graffiti may be abated according to the provisions and procedures set forth in this chapter. (Ord. 825 § 2 (part), 1995)
9.65.035 Enforcement.
A. This chapter shall be enforced pursuant to the provisions of Chapter 1.08 through 1.10, inclusive, of the Folsom Municipal Code.
B. The code enforcement officer and the police chief and his/her designee shall enforce the provisions of this chapter. (Ord. 849 § 2(2) (part), 1996)
9.65.037 Right of entry.
The code enforcement officer may enter upon private property to inspect and enforce the provisions of this chapter according to the procedures set forth in Section 1.09.025. (Ord. 849 § 2(2) (part), 1996)
9.65.040 Prohibition of application of graffiti.
It is unlawful for any person to apply graffiti, as defined in Section 9.65.020, upon any real or personal property, whether publicly or privately owned, including on any buildings, structures, fences, walls, signs, sidewalks, windows, streets, vehicles, trees or other such places, or things within the city. (Ord. 849 § 2(3) (part), 1996)
9.65.050 Abatement obligations.
A. Obligation of Property Owner and/or Possessor of Property to Abate Graffiti. It shall be the duty of both the owner of the property on which the graffiti is located and any person who is in possession of such property to at all times maintain such property that can be viewed by any person utilizing any public right-of-way free from graffiti. If the owner and/or possessor of the property on which the graffiti is located is determined to have no responsibility for the placement of the graffiti on the property, the city may assist in the abatement of the graffiti as provided for in this chapter, and may waive costs for abatement upon a showing of financial or physical hardship to the satisfaction of the code enforcement officer. In all cases, if the owner and/or person in possession of the property fails to maintain such property free of graffiti at any time, the graffiti may be summarily abated by the code enforcement officer or his/her designee pursuant to the provisions set forth in this chapter.
B. Removal by Person Applying Graffiti. Any person applying graffiti within the city shall have the duty to remove such graffiti immediately, but not longer than 72 hours after notice by the city, under conditions and circumstances approved by the property owner and, upon request of the property owner, under the supervision of the police department or code enforcement officer. Failure of any person to so remove graffiti shall constitute a separate violation. Every day that such graffiti is not removed after notice shall constitute a separate offense. (Ord. 849 § 2(3) (part), 1996)
9.65.055 Penalties.
A. A violation of this chapter shall be an administrative violation as defined in Section 1.08.020. In addition to enforcement by any procedure set forth in Chapters 1.08 through 1.10, inclusive, any violation of this chapter shall be punishable as a misdemeanor. This punishment shall be cumulative of and in addition to, any other applicable punishment or relief provided by state law, including, but not limited to, Vehicle Code Section 13202.6 and Penal Code Sections 594, 640.5, 640.6 and 640.7.
B. Each of the sanctions for administrative violations identified in Section 1.09.013 shall be available for enforcement of the provisions of this chapter.
C. In addition to the criminal penalty set forth in Section 9.65.055(A), based upon the criteria for the imposition of administrative sanctions set forth in Section 1.09.014, a violation of a provision of this chapter shall be deemed a Level B violation, as that term is described in Section 1.09.012. The range of monetary sanctions available for a violation of this chapter shall be as set forth in Section 1.09.012(B). (Ord. 849 § 2(4) (part), 1996)
9.65.058 Enforcement procedures.
A. The code enforcement officer shall follow the procedures set forth in Chapter 1.09 to enforce this chapter. The rights to judicial review set forth in Sections 1.09.050 through 1.09.059, inclusive, of the Folsom Municipal Code shall apply.
B. A notice to correct shall be served in accordance with the provisions of Section 1.09.023. The time to correct any violation of a provision of this chapter shall be no longer than 10 days and may be as short as 5 days. The time allowed for abatement shall be determined based upon: (1) the amount of the graffiti; (2) the difficulty in removing the graffiti; (3) the cost that will be entailed in removing the graffiti; (4) whether the continuing presence of the graffiti is likely to cause a proliferation of additional graffiti at the site; and (5) whether the continuing presence of the graffiti is likely to encourage the proliferation of criminal activity at the site. The notice to correct shall be served: (1) on the owner and/or possessor of the property, (2) on any person believed to be responsible for applying the graffiti, and (3) on the parent or legal guardian of a person believed to be responsible for applying the graffiti if such person is under the age of 18.
C. If the graffiti is not abated and removed after service of the notice to correct, the code enforcement officer shall serve a notice of administrative violation as provided for in Section 1.09.024. The code enforcement officer may determine not to serve a notice of administrative violation on a property owner and/or possessor of the property if the code enforcement officer determines that such person(s) are not responsible for the application of the graffiti.
D. A notice to abate may be served with a notice to correct or at any time after service of a notice to correct. The notice to abate shall be served in accordance with the procedures set forth in Sections 1.10.010 through 1.10.030, inclusive, of the Folsom Municipal Code, except that the notice to abate may provide that abatement must occur within 5 calendar days of the service of the notice. The notice to abate shall contain all of the information required by Section 1.10.020(B) and shall be served in accordance with the provisions of Section 1.10.020(C). (Ord. 849 § 2(4) (part), 1996)
9.65.060 Abatement.
A. Abatement at Expense of City.
1. Summary Abatement—Imminent Danger to the Public Safety. The code enforcement officer or his/her designee may summarily abate graffiti at the expense of the city when it appears that the continued presence of such graffiti presents an imminent danger to the public safety and welfare. If the code enforcement officer intends to take such action as allowed in this subsection, the code enforcement officer shall notify the property owner and/or possessor of the property of his/her intent to enter onto the property to take such action at least 24 hours prior to entering onto the property. If the property owner and/or person possessing the property has not objected within said 24-hour period, such person(s) will be deemed to have consented to summary abatement by the city. If the code enforcement officer or his/her representative is notified either in writing or verbally that the property owner and/or person in possession of the property objects to the summary abatement of graffiti on his or her property, the code enforcement officer shall terminate his/her efforts to summarily abate such graffiti and shall comply with the hearing procedure set forth in Sections 1.09.030 through 1.09.049, inclusive, of the Folsom Municipal Code. Any such hearing will receive priority and shall be set as soon as practicable.
2. Abatement Where Graffiti Contributes to Conditions of Blight. In addition, the code enforcement officer may abate graffiti upon the request of the city manager and at the expense of the city when such graffiti is contributing to a condition of blight after following the notice and hearing procedures set forth in Title 1 of the Folsom Municipal Code.
B. Summary Abatement—Statement of Costs—Waiver of Costs. If the graffiti is not abated within the time prescribed in the notice to correct, or in the hearing officer’s order if a timely request for hearing was filed, all persons served with such notices and orders shall be deemed to have consented to the entry onto their property by the city and the code enforcement officer or his/her designee shall be authorized to immediately abate such graffiti. The code enforcement officer shall keep an account of the costs and expenses, including all direct and indirect costs and expenses in abating such graffiti, and shall render 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, unless financial or physical hardship is demonstrated to the satisfaction of the code enforcement officer. In the event the property owner and/or person possessing the property has presented the code enforcement officer with such written evidence of financial or physical hardship, the code enforcement officer will notify the property owner and/or person possessing the property in writing if costs of abatement will be waived before proceeding to abate such graffiti. In the event the code enforcement officer determines that such costs should not be waived, the property owner and/or person possessing the property may file a request for a hearing as provided for in Section 1.09.032.
C. Failure to Pay Costs—Authority to Record Lien. Except as to persons who have demonstrated a financial or physical hardship in paying for the costs of abatement and/or abatement at their own expense, the city may impose liens and/or assessments in the amount of any administrative penalties and costs or expenses as provided for in Title 1 of the Folsom Municipal Code. (Ord. 849 § 2(5), 1996)
9.65.070 Notice to abate—Hearing procedure.
A. Notice Requirement. Whenever the code enforcement officer determines that graffiti is located on privately or publicly owned property within the city in violation of this chapter and the owner or person occupying the property refuse to consent to abatement by the city, the code enforcement officer shall serve a written notice to abate such graffiti upon the owner of the property (as shown on the last equalized assessment roll or the supplemental roll, whichever is most current), and on any persons known to be possessing such property.
B. Contents of Notice. The notice shall be in substantially the same form as Attachment 1 and shall include the following information:
1. The street address, legal description or other description sufficient to identify the affected property;
2. A statement that the property owner and/or person in possession of the property has 5 days from the date of the notice to voluntarily abate the graffiti;
3. A statement that the property owner and/or person in possession of the property, may, during the period of voluntary abatement: (1) file a written request for a hearing with the code enforcement officer if there is an objection to the demand to abate the graffiti; or (2) present written evidence to the code enforcement officer to show that the property owner or person in possession of the property had no responsibility for placing the graffiti on the property and that to be required to remove or abate such graffiti will cause financial or physical hardship; and
4. A statement that if the graffiti is not voluntarily abated within the stated period, and the property owner and/or person in possession of the property fails to present the information set forth in subsection (B)(3) of this section or to file a timely written request for a hearing, all persons served with such notice shall be deemed to have consented to the abatement of the graffiti and that the city will abate the graffiti, and that, at the election of the city, the costs for such abatement may be charged against the premises and may be recorded as a lien against the premises.
C. Service of Notice. The notice to abate the graffiti shall be served in the same manner as a summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 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 5 days. 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.
D. Request for Hearing. A written request for a hearing must be received by the code enforcement officer or his/her designated representative within 5 days of the date of the notice. The code enforcement officer shall set a time and date for the hearing and notify the person requesting the hearing in writing of the time, date and place of the hearing. The hearing shall be before a person designated by the city manager. The hearing shall be an informal opportunity for the person requesting the hearing to present his or her objections to the abatement of the graffiti.
E. Decision After Hearing. After conclusion of the hearing, the hearing officer shall render a decision in writing that either upholds or denies the city’s authority to abate the graffiti. If the city’s authority to abate the graffiti is sustained, the decision shall contain an order to abate and a deadline for abatement which shall not be more than 5 days from the date of the decision. The decision shall be served on the person requesting the hearing by first class United States mail. The decision of the hearing officer shall be the final administrative decision by the city.
F. Summary Abatement—Statement of Costs—Waiver of Costs. If the graffiti is not abated within the time prescribed in the hearing officer’s order, or if a timely request for a hearing is not filed, all persons served with such notices and orders shall be deemed to have consented to the entry onto their property by the city and the code enforcement officer or his/her designee shall be authorized to immediately abate such graffiti. The code enforcement officer shall keep an account of the costs and expenses, including all direct and indirect costs and expenses in abating such graffiti, and shall render 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, unless financial or physical hardship is demonstrated to the satisfaction of the code enforcement officer. In the event the property owner and/or person possessing the property has presented the code enforcement officer with such written evidence of financial or physical hardship, the code enforcement officer will notify the property owner and/or person possessing the property in writing if costs of abatement will be waived before proceeding to abate such graffiti. In the event the code enforcement officer determines that such costs should not be waived, the property owner and/or person possessing the property may file a request for a hearing within 5 days of the date of that notice.
G. Failure to Pay Costs—Authority to Record Lien. Except as to persons who have demonstrated a financial or physical hardship in paying for the costs of abatement and/or abatement at their own expense, if all or any portion of the costs and expenses incurred by the city in abating the graffiti and accounted for by the code enforcement officer remain unpaid after 30 days, pursuant to authority created by law, including Government Code Section 38773 et seq., such portion thereof as remains unpaid shall constitute and is declared to constitute a lien on the real property which was the subject of notice to abate. The city manager or his/her designee shall present a resolution of lien to the city council, and upon passage and adoption thereof, shall cause a certified copy thereof to be recorded with the Sacramento County recorder’s office. (Ord. 825 § 2 (part), 1995)
9.65.080 Criminal penalty—Graffiti abatement cost recovery and parental civil liability.
Any and all violations of this chapter shall be punishable as a misdemeanor. This punishment shall be cumulative of and in addition to, any other applicable punishment or relief provided by state law, including, but not limited to, Vehicle Code Section 13202.6 and Penal Code Sections 594, 640.5 and 640.6. In addition, any conduct prohibited by this chapter causing damage to property, shall cause the violator, or a parent or guardian having custody of a minor, to be jointly and severally liable with the minor, for any damages resulting from such misconduct, including, but not limited to, the costs expended to remove or otherwise abate such graffiti damage, including court costs and attorney’s fees incurred in the civil prosecution of any claim for damages. The city manager shall have the authority to seek reimbursement for the city’s cost of removal and abatement pursuant to California Civil Code Section 1714.1(b). (Ord. 825 § 2 (part), 1995)
9.65.090 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 proceeding to abate a public nuisance under applicable provisions of state law as an alternative to proceedings set forth in this chapter. (Ord. 825 § 2 (part), 1995)
Attachment 1
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 ____________________, Folsom, California, which is visible to public view, within five (5) days after the date of this notice; or, if you fail to do so, you will be deemed to have consented to allow City employees or private City contractors to enter upon your property and abate the public nuisance by removal or painting over the graffiti.
Unless you present written evidence of financial or physical hardship to the Code Enforcement Officer for the City of Folsom at 50 Natoma Street, Folsom, California, 95630, within five (5) days of the date of this notice, the cost of the abatement by the City employees or its private contractors will be assessed as a lien upon your property and such costs will be recovered by civil process. In the event you present written evidence of financial or physical hardship, the Code Enforcement Officer will notify you in writing if costs of abatement will be waived before proceeding to abate such graffiti. In the event the Code Enforcement Officer determines that such costs should not be waived, you may file a request for a hearing with the Code Enforcement Officer at the above-referenced address within five (5) days of the date of that notice.
All persons having any objection to, or interest in, said matters are hereby notified to submit any objections or comments in writing to the Code Enforcement Officer for the City of Folsom or his/her designated representative within five (5) days from the date of this notice. If no such written objections are received by the City by the conclusion of this five (5) day period, the City may proceed with the abatement of the graffiti inscribed on your property at your expense without further notice.
CITY OF FOLSOM
______________________
Code Enforcement Officer