Chapter 12.5
GRAFFITI REGULATIONS
Sections:
12.5.2 Declaration of graffiti as a public nuisance.
12.5.5 Possession of graffiti implement by minors prohibited.
12.5.6 Possession of graffiti implement in public places.
12.5.7 Sale and display of graffiti implements.
12.5.9 Abatement and cost recovery proceedings.
12.5.12 Procedures in this chapter cumulative to other legal remedies.
12.5.1 Council findings.
The city council of the City of Gilroy hereby finds and declares that graffiti is detrimental to property values, promotes blight, degrades the quality of life in the community, is inconsistent with the city’s property maintenance goals and aesthetic standards, is detrimental to the public health, safety and welfare, is often related to gang activity and may, therefore, lead to an increase in crime, and if not promptly removed may lead to the spread of additional graffiti. The council also finds that the greatest disincentive to graffiti and its spread to other properties is its prompt eradication. The council further finds and declares that the regulation of graffiti by the city is necessary in order to protect the public health, safety and welfare. This city council further finds that graffiti is unlawful and a serious crime to the community and that the expense of abatement should be recovered for violations of this chapter. This chapter is intended to be complementary to and not in conflict with Penal Code section 594, which provides that any person who maliciously defaces property is guilty of vandalism, and Penal Code section 594.1 which provides that certain activities involving the possession, sales and use of aerosol paint containers are misdemeanors. (Ord. No. 94-21, § I, 12-19-94; Ord. No. 98-11, § I, 6-15-98; Ord. No. 98-12, § I, 7-6-98)
12.5.2 Declaration of graffiti as a public nuisance.
The city council of the City of Gilroy hereby declares that graffiti is obnoxious and is a public nuisance which may be abated and that the expense of abatement and administrative costs may be collected pursuant to the procedures set forth in this chapter. (Ord. No. 94-21, § I, 12-19-94; Ord. No. 98-11, § II, 6-15-98; Ord. No. 98-12, § II, 7-6-98)
12.5.3 Definitions.
“Administrative costs” includes, but is not limited to, the costs incurred by the city for removal of the graffiti or other inscribed material from personal or real property, the costs of repair and replacement of defaced personal or real property; and the costs incurred by the city in administering the graffiti abatement on privately or publicly owned personal or real property.
“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.
“Expense of abatement” includes, but is not limited to, court costs, attorney’s fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced personal or real property, the law enforcement costs incurred by the city in identifying and apprehending the minor or person who created, caused, or committed the graffiti or other inscribed material on the publicly or privately owned real or personal property within the city; and, the costs of administering and monitoring the participation of a person, and if a minor, his or her parents or guardians, in a graffiti abatement program.
“Felt tip marker” means any marker or similar implement with a tip which at its broadest width is greater than three-eighths (3/8) of an inch, containing ink or other pigmented liquid which cannot be removed with water after it dries.
“Graffiti” includes any unauthorized inscription, writing, lettering, word, drawing, figure, marking, painting or design that is marked, written, etched, scratched, drawn, painted, or otherwise placed on any real or personal property.
“Graffiti implement” means an aerosol paint container, a felt tip marker, a paint stick or graffiti stick.
“Minor” means a person who is under the age of eighteen (18) years old.
“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 three-eighths (3/8) of an inch in width, which cannot be removed with water after it dries.
“Real or personal property” includes, but shall not be limited to, buildings or other structures, such as walls; fences; signs; retaining walls; driveways; walkways; sidewalks; curbs; street lampposts; hydrants; trees; electric, light, power, telephone or telegraph poles; drinking fountains; and garbage receptacles.
“Responsible minor” means a minor who has confessed to, admitted to, pled guilty to or pled nolo contendere to a violation of this chapter, or to a violation of section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code; or a minor convicted by a final judgment of a violation of this chapter, or to a violation of section 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 this chapter or by section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code. (Ord. No. 94-21, § I, 12-19-94; Ord. No. 98-11, § III, 6-15-98; Ord. No. 98-12, § III, 7-6-98)
12.5.4 Graffiti prohibited.
(a) It shall be unlawful to place graffiti upon any real or personal property when the graffiti is visible from any public right of way or from any other public or private property.
(b) It shall also be unlawful for any person who owns or is otherwise in control of any real or personal property within the city to permit graffiti to be placed, or to allow graffiti to remain for more than forty-eight (48) hours after receiving the notice described in section 12.5.9 herein, upon real or personal property when the graffiti is visible from any public right-of- way or from any other public or private property.
(c) This section 12.5.4 shall apply to both public and private property in all zoning districts of the city. (Ord. No. 94-21, § I, 12-19-94)
12.5.5 Possession of graffiti implement by minors prohibited.
It is unlawful for any person under the age of eighteen (18) years, to possess any graffiti implement while upon private property, without first having obtained the prior consent of the owner of such property to the minor’s presence and possession of a graffiti implement on the property. (Ord. No. 94-21, § I, 12-19-94)
12.5.6 Possession of graffiti implement in public places.
It is unlawful for any person to have in his or her possession any graffiti implement in any public park, playground, beach, swimming pool or other public recreational facility, or while loitering in or near an underpass, bridge abutment, storm drain, or other similar types of infrastructure not normally used by the public, except as may be authorized by the city. This provision shall not apply to any person who is traveling to or from a school in which he or she is enrolled and attending a class for which the teacher has required the use of the graffiti implement in such person’s possession. (Ord. No. 94-21, § I, 12-19-94)
12.5.7 Sale and display of graffiti implements.
(a) It is unlawful for any person to sell any felt tip marker, paint stick or graffiti stick to any person under the age of eighteen (18) years without the consent of the minor’s parent or legal guardian, which consent shall be given in advance in writing.
(b) It is unlawful for any person who owns, conducts, operates or manages a commercial, retail or wholesale establishment where graffiti implements are sold, to store or display, or cause to be stored or displayed, such graffiti implements in an area that is accessible to the public without employee assistance in the regular course of business pending legal sale or other disposition.
(c) Nothing herein shall preclude the storage or display of graffiti implements in an area viewable by the public so long as such items are not accessible to the public without employee assistance.
(d) Any person who sells, displays or stores a graffiti implement in violation of the provisions of this chapter shall be personally liable for any and all costs incurred by any party in connection with the removal of graffiti, or the repair of any property containing graffiti, caused by a minor who shall use such graffiti implement, and for all attorneys’ fees and court costs incurred in connection with the civil prosecution of any claim for damages. (Ord. No. 94-21, § I, 12-19-94)
12.5.8 Graffiti removal.
The city administrator shall have the right from to time to implement one (1) or more programs for the removal of graffiti located on any public or private property within the city which is visible from any public right-of-way or public or private property, solely at the city’s expense, unless the city elects to recover the expense of abatement and/or administrative costs, from third parties pursuant to sections 12.5.7(d), 12.5.10 and 12.5.11, and without reimbursement from the owner or other person in control of real or personal property, upon the following conditions:
(1) The property owner or other person in control of such property should be encouraged to perform the removal with his/her own resources;
(2) The city shall not paint or repair a more extensive area than is necessary to remove the graffiti, unless the city administrator or his/her designee determines that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the property owner or other person in control of such property agrees to pay for the cost of repainting or repairing the more extensive area; and
(3) The removal of the graffiti may be performed only after securing the consent of the property owner or other person in control of such property, and that individual executes a release and right of entry form permitting such graffiti removal. (Ord. No. 94-21, § I, 12-19-94; Ord. No. 98-11, § IV, 6-15-98; Ord. No. 98-12, § IV, 7-6-98)
12.5.9 Abatement and cost recovery proceedings.
Notwithstanding the city administrator’s right to implement graffiti removal programs pursuant to section 12.5.8, it shall be the primary obligation of all persons who own or are otherwise in control of any real or personal property upon which graffiti has been placed, to cause the removal of such graffiti within forty-eight (48) hours after receiving the notice described in subsection 12.5.9(1). The city administrator may cause the abatement and removal of graffiti on public or private property in accordance with the following procedure:
(1) Notice. The city administrator or his/her designee shall issue a forty-eight-hour written notice of intention to abate the graffiti as a public nuisance and shall serve such notice by any of the following methods:
a. By personal service on the owner, occupant or person in charge or control of the property;
b. By posting at a conspicuous place on the property or abutting public right-of-way; or
c. By sending a copy of such notice by registered or certified mail addressed to the owner or person in charge or control of the property, at the address shown on the last available assessment roll, or as otherwise known.
(2) Form. The notice of intention shall be in substantially the following form:
NOTICE OF INTENT TO REMOVE GRAFFITI
(Name and address of person notified)
Date: __________
NOTICE IS HEREBY GIVEN that you are required by Gilroy Municipal Code section 12.5.9 at your expense to remove or paint over the graffiti in existence on the property located at (address), which is visible to public view, within forty-eight (48) hours after receipt of this notice; or, if you fail to do so, city employees or private contractors employed by the city will enter upon your property and abate the public nuisance by removal or painting over the graffiti. The administrative costs of abatement by the city employees or private contractors will be assessed against you and your property and such costs will constitute a lien upon such property until paid.
At the conclusion of this forty-eight-hour period, without further notice and at your expense, the city may proceed with the abatement of the graffiti inscribed on your property unless you appeal the order of abatement to the city council within the forty-eight-hour period referenced above. Any appeal shall be accompanied by a written statement of reasons and the payment of the filing fee established by the city council.
(3) Appeal.
a. Within forty-eight (48) hours after issuance of the notice described in subsection 12.5.9(2), the owner or person occupying or controlling such property affected may appeal the order of abatement to the council. Appeals shall be filed with the city clerk and shall be accompanied by a letter stating the reasons for the appeal and a fee as required by council resolution. The council shall hear such appeals;
b. Within fifteen (15) days after receipt of the appeal application, the city clerk shall notify the applicant of the date, time and location at which the council shall hear the appeal. The council shall hear and pass upon the appeal within thirty (30) days after receipt of the appeal application. The decision of the council thereupon shall be final and conclusive.
(4) Removal by City. Forty-eight (48) hours after service of the notice, or if appealed, not less than twenty-four (24) hours after the decision of the council declaring the graffiti to be a public nuisance, the city administrator is authorized and directed to cause the graffiti to be abated by the city or private contractor, and the city or its private contractor is expressly authorized to enter upon the property for such purposes.
(5) Accounting. The city administrator shall keep an account of the cost of abatement and an itemized report to the city council shall be filed with the city clerk. Such report shall refer to each separate lot or parcel of land by description sufficient to identify such lot or parcel, together with the expense proposed be assessed against each separate lot or parcel of land.
(6) Assessment of Costs Against Owner or Other Person in Control of Property. The total administrative costs of abatement shall be a personal obligation of the owner or other person in control of the real or personal property upon which graffiti has been abated, and shall be paid by such owner or other person within thirty (30) days after receiving a demand for such payment from the city. Pursuant to Government Code section 38773.5, the total administrative costs of abatement shall constitute a special assessment against the property subject to the graffiti abatement, if not paid in full within thirty (30) days after demand for such payment has been made by the city. After the assessment is made, it shall constitute a lien on the property subject to the graffiti abatement. The owner or other person in control of the real or personal property upon which graffiti has been abated shall not be relieved of any of its obligations or liabilities pursuant to this section 12.5.9 by virtue of subsection 12.5.9(7) below, or any other provision of this chapter.
(7) Assessment of Costs Against Minor, Parent and/or Guardian.
a. The total expense of abatement, including all administrative costs, shall also be a personal obligation of any minor responsible for the graffiti upon the property subject to the graffiti abatement, and shall be paid for by such minor within thirty (30) days after receiving a demand for such payment from the city. Pursuant to Government Code section 38773.6, the total expense of abatement and administrative costs shall constitute a lien against any real property owned by the minor, if such expense of abatement and administrative costs are not paid in full within thirty (30) days after demand for such payment has been made by the city. After the assessment is made, it shall constitute a lien against the real property of the minor.
b. The parent or guardian having custody and control of the minor responsible for the graffiti upon the property subject to the graffiti abatement shall be jointly and severally liable with the minor, and the expense of abatement and administrative costs shall constitute a personal obligation of such parent or guardian. The total expense of the abatement and administrative costs, shall be paid for by a parent or guardian having custody or control of the minor within thirty (30) days after receiving a demand for such payment from the city. Pursuant to Government Code section 38773.6, the total expense of abatement, including all administrative costs, shall constitute a lien against any real property owned by the parent or guardian having custody or control of the minor, if such expense of abatement and administrative costs are not paid in full within thirty (30) days after demand for such payment has been made by the city. After the assessment is made, it shall constitute a lien against the real property owned by the parent or guardian having custody and control of the minor.
(8) Imposition of Lien.
a. The city clerk shall post copies of the report referenced in subsection 12.5.9(5) on the bulletin board in the council chambers at the city hall in the city and on the bulletin board in the lobby of the city clerk’s office located at the city hall in the city, together with the notice of the filing thereof and of the time and place when and where it will be submitted to the city council for hearing and confirmation, notifying property owners that they may appear at such time and place and object to any matter contained therein. A like notice shall also be published twice in a newspaper of general circulation, published and circulated within the city. The posting and first publication of such notice shall be made and completed at least ten (10) days before the time set for the hearing referenced in this subsection. In addition, such notice shall be served on the property owner at least ten (10) days before the hearing referenced below, by any of the following methods:
1. By personal service on the owner of such property;
2. By posting at a conspicuous place on the property which will be the subject of the special assessment; or
3. By sending a copy of such notice by registered or certified mail addressed to the owner of the property, at the address shown on the last available assessment roll for the property to be subject to the special assessment, or as otherwise known.
b. The notice of intention given pursuant to this section 12.5.9(8) shall be in substantially the following form:
NOTICE OF INTENT TO IMPOSE SPECIAL ASSESSMENT
(Name and address of person notified)
Date: __________
NOTICE IS HEREBY GIVEN that pursuant to section 12.5.9 of the Gilroy Municipal Code, graffiti was abated at that certain real property commonly known as ________________. Notice is hereby given that you are required to pay for the expense of abatement, or administrative costs, or both, pursuant to Gilroy Municipal Code section 12.5.9 within thirty (30) days after receipt of this notice. If you fail to do so, you shall be personally liable to the city for the payment of such amount, and such amount shall constitute a lien upon your real property located at ________________, California.
NOTICE IS FURTHER GIVEN that on _________, at the hour of _________ o’clock p.m., in the Council’s Chambers of Gilroy City Hall, the city administrator’s report of the amount owed and the imposition of a special assessment lien upon your property shall be presented to the City Council of the City of Gilroy for consideration and confirmation, and that any and all persons interested, having any objections to the amount owed or the imposition of such lien, may appear at said time and place and be heard.
c. At the time and place fixed for considering the city administrator’s report of the amount owed and the imposition of such special assessment, the city council shall hear the same together with any objections which may be raised by any of the property owners liable to be assessed for the work of abating the graffiti. The city administrator shall attend such meeting with his record of the expense of abatement, or administrative costs, or both. Upon such hearing, the city council may make such modifications in the proposed assessment therefor as it may deem necessary, if any, after which such report and assessment shall be confirmed by resolution. The entire expense of abatement, or administrative costs, or both, shall constitute a special assessment against the real property and after thus made and confirmed shall constitute a lien on such property for the amount of such assessment until paid, if not paid within thirty (30) days after the notice referred to in subsection 12.5.9(8)b. above is delivered to the property owner.
(9) Collection. The director of finance shall cause the amount of any special assessment imposed pursuant to this section to be entered on the city assessment roll opposite the description of the particular property to be assessed, and the amount shall be collected together with all other taxes thereon upon the property. Thereafter, such amounts shall be collected at the same time and in the same manner as general city taxes are collected and shall be subject to the same penalties and interest and the same procedure and sale in case of delinquency as provided for city taxes. All laws and ordinances applicable to the levy, collection and enforcement of city taxes are hereby made applicable to such special assessments. The property owner has the option, if he so desires, of paying the assessment directly to the collector’s office before such entry on such assessment role. (Ord. No. 94-21, § I, 12-19-94; Ord. No. 98-11, § V, 6-15-98; Ord. No. 98-12, § V, 7-6-98)
12.5.10 Recovery of costs.
(a) Any responsible minor or person who created, caused, or committed the graffiti or other inscribed material on publicly or privately owned personal or real property within the city shall be liable to the city for the expense of abatement of such graffiti and administrative costs.
(b) Any responsible minor or person owing money to the city under this section shall be liable in any action brought in the name of the city for the recovery of the expense of abatement of such graffiti and administrative costs. (Ord. No. 94-21, § I, 12-19-94; Ord. No. 98-11, § VI, 6-15-98; Ord. No. 98-12, § VI, 7-6-98)
12.5.11 Parental liability.
(a) Any parent or other legal guardian who consents to, permits, or otherwise knowingly allows his or her minor to possess a graffiti implement shall be personally liable for the expense of abatement and administrative costs which are incurred by any person in connection with the graffiti caused by said minor or by the graffiti implement. Liability pursuant to this section shall be in addition to any other liability imposed by law, including without limitation California Civil Code section 1714.1.
(b) Wherever any minor who created, caused, or committed the graffiti or other inscribed material on publicly or privately owned personal or real property within the city, or any minor against whom a fine, levy, expense of abatement and administrative costs are assessed pursuant to this chapter, that minor’s parent or legal guardian shall also be liable to the city for the expense of abatement and such fine, levy or administrative cost. (Ord. No. 94-21, § I, 12-19-94; Ord. No. 98-11, § VI, 6-15-98; Ord. No. 98-12, § VI, 7-6-98)
12.5.12 Procedures in this chapter cumulative to other legal remedies.
The procedures set forth in this chapter shall be cumulative to, and shall not foreclose the application of, any other existing legal remedies. (Ord. No. 94-21, § I, 12-19-94)
12.5.13 Criminal penalties.
Any violation of sections 12.5.4(a), 12.5.5, 12.5.6, and 12.5.7 of this chapter is a misdemeanor. Any violation of subsection 12.5.4(b) of this chapter is an infraction. (Ord. No. 94-21, § I, 12-19-94)