Chapter 9.40
GRAFFITI ABATEMENT
Sections:
9.40.020 Declaration of public nuisance.
9.40.030 Application of graffiti prohibited.
9.40.040 Possession of graffiti implements by minors prohibited.
9.40.050 Possession of graffiti implements prohibited in certain public places.
9.40.060 Display, posting and storage requirements.
9.40.070 Maintenance of graffiti prohibited.
9.40.080 Abatement of nuisance.
9.40.090 Removal by city with consent of owner.
9.40.110 Contents of notice to abate.
9.40.120 Service of notice to abate or demand for payment.
9.40.140 Scope of abatement utilizing public funds.
9.40.150 Appeal hearing request and procedure.
9.40.170 Demand for payment/costs of abatement.
9.40.180 Appeals for demand for payment.
9.40.190 Prevention of graffiti through land use entitlements.
9.40.200 Reward for information.
9.40.210 Parental responsibility.
9.40.010 Definitions.
For the purposes of this chapter, the following words and phrases shall have the meanings respectively defined by this section:
A. “Abate” means to remove the graffiti by such means in such manner and to such an extent as the City Manager reasonably determines is necessary to remove the graffiti from public view.
B. “Adhesive label” means any so-called “bumper sticker,” sheet of paper, fabric, plastic, or other material with an adhesive backing.
C. “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, undercoating, spray insulation, or other substance capable of defacing property.
D. “City” means the City of Healdsburg and its authorized agents.
E. “City Manager” means the City Manager or his or her designee.
F. “Code” means the most current version of the municipal code of the City of Healdsburg.
G. “Costs” means and includes, but is not limited to, court costs, attorneys’ fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, and the law enforcement costs incurred by the City in identifying and apprehending the person or persons who created, caused, or committed the graffiti or other inscribed material in violation of this chapter.
H. “Enforcement officer” means any City official authorized by the City Manager to enforce the provisions of this chapter, including, but not limited to, those from the planning and building department, community services department, police department and the public works department, as well as any contract agent authorized by the City to abate graffiti nuisances described in this chapter.
I. “Felt-tip marker” means any broad-tipped indelible marker or similar implement with a tip which, at its broadest width, is greater than three-eighths of an inch and which contains an ink or other pigmented liquid that is not water soluble.
J. “Graffiti” means any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on or otherwise glued, posted, or affixed to or on any personal or real property unless the same was authorized in advance by the owner thereof.
K. “Graffiti implement” means an aerosol paint container, felt tip marker, gum label, paint stick, crayon, etching tool capable of scarring glass, metal, concrete, wood, or other surface, etching cream or other such solvent, adhesive label, or any other device capable of being used to leave a visible mark at least one-eighth of an inch in width upon any surface of any material.
L. “Hearing officer” means the City Manager or his or her designee.
M. “Minor” means a person less than 18 years of age.
N. “Paint stick” or “graffiti stick” means a device containing a solid form of paint, chalk, wax, epoxy, caulk, or similar substance capable of being applied to a surface by pressure, and, upon application, leaving a mark at least one-eighth of an inch in width.
O. “Property owner” means any person, partnership, corporation or other entity, or agent of any of the foregoing, who owns, possesses, occupies, or otherwise has responsibility for the repair or maintenance of real property.
P. “Responsible person” means an owner, or an entity or person acting as an agent for the owner by agreement, who has authority over the property or is responsible for property’s maintenance or management, irrespective of any arrangement to the contrary with any other party, each owner shall always be a responsible party for the purposes of this chapter. There may be more than one responsible party for a particular property.
Q. “Structures” means any structure as defined in the City’s building code, and shall also include, but not be limited to, buildings, walls, fences, poles, signs, posts, railings, benches, tables, waste containers, sidewalks, streets, and cargo/shipping containers.
R. “Unauthorized” means without the consent of the owner or without authority of law. Unless the owner proves otherwise, lack of consent will be presumed under circumstances tending to show (1) the absence of evidence of specific authorization by the owner, (2) that the visual blight is inconsistent with the design and the use of the subject property, or (3) that the person causing the visual blight was unknown to the owner. (Ord. 1086 § 1, 2009.)
9.40.020 Declaration of public nuisance.
Pursuant to California Government Code Section 38771, the City Council hereby declares the following conditions to constitute a public nuisance:
A. Graffiti or other inscribed material on any building, structure, tree, shrub, sidewalk, curb, vehicle, personal property (public or private) or real property (public or private) in the City that is visible from any real property (privately or publicly owned), public street, sidewalk, alley, or other public right-of-way.
B. The existence of any surface of any building, structure, tree, shrub, curb, vehicle, personal (public or private) or real property (public or private) in the City which has been defaced with graffiti or other inscribed material more than three times in any 12-month period (hereinafter “graffiti attracting surface”). (Ord. 1086 § 1, 2009.)
9.40.030 Application of graffiti prohibited.
It shall be unlawful and a misdemeanor for any person to apply graffiti to any building, structure, tree, shrub, curb, vehicle, or to other personal or real property (public or private) located within the City. It shall also be unlawful and a misdemeanor for any person to apply or affix any adhesive label to any building, structure, tree, shrub, curb, vehicle, or personal or real property (public or private) not owned or lawfully possessed by such person, or without advance authorization by the owner thereof. (Ord. 1086 § 1, 2009.)
9.40.040 Possession of graffiti implements by minors prohibited.
A. It shall be unlawful and a misdemeanor for any minor to have in his or her possession any graffiti implement or other instrument set forth in subsection (B) of this section while upon private property without the prior written consent of the owner of such property, or in or upon a public highway, street, alleyway, park, playground, swimming pool, public building or any area open to the public.
B. The possession of the following instruments shall also be prohibited in the manner set forth in subsection (A) of this section:
1. Any spray can containing anything other than a solution which can be removed by water after it dries;
2. Any spray can tips, other than those affixed to a spray can, not meeting the description of subsection (B)(1) of this section;
3. Any marker pens containing a solution which cannot be removed with water after it dries;
4. Any container holding solution or substance which cannot be removed with water after it dries. The foregoing include acrylic paint tubes, oil paint tubes, shoe dyes, paint sticks, and bottles and cans of such solutions; and
5. Objects capable of etching glass or ceramic surfaces, including, but not limited to, bits, grinding stones, glass cutters, scribes, broken spark plug ceramic, chisels, and any material or solution capable of etching these surfaces when applied, including acids and etching baths.
C. Notwithstanding the foregoing, the prohibitions of this section do not apply to a minor who possesses a graffiti implement or other prohibited device while the minor is attending or traveling to or from a school and is participating in a class or school-related event at such school, which class or event requires the use of a graffiti implement or other prohibited device, subject to evidence being produced by the minor that possession of a graffiti implement or other prohibited device is related to his or her enrollment in a class or involvement in a school-related event requiring the use of a graffiti implement or other prohibited device. (Ord. 1086 § 1, 2009.)
9.40.050 Possession of graffiti implements prohibited in certain public places.
It shall be unlawful and a misdemeanor for any person to have in his or her possession any graffiti implement while in or upon any public park, playground, swimming pool, recreation facility, or while in, or within, 10 feet of an overpass, underpass, bridge, abutment, storm drain, or similar types of infrastructure not normally used by or accessible to the public, except as may be authorized by the City. (Ord. 1086 § 1, 2009.)
9.40.060 Display, posting and storage requirements.
A. This chapter is not intended to limit a commercial business from displaying graffiti implements or marking devices, provided they have taken aggressive and appropriate steps to limit theft of such devices.
B. Any person or business engaged in the retail sale of any graffiti implement shall display at a conspicuous location a legible sign measuring not less than 12 inches by 12 inches with letters at least one-half inch in height which states:
It is unlawful for any person to sell or give to any individual under the age of eighteen years, without prior written authorization from a parent or legal guardian, any Graffiti Implement or other device capable of being used to deface real or personal property. Any person who maliciously defaces real or personal property with etching cream [as defined in Penal Code §549.1(a)(2)] is guilty of vandalism which is punishable by a fine, imprisonment, or both.
C. It shall be unlawful and a misdemeanor for any person or business engaged in the commercial enterprise of selling, providing, loaning, or trading graffiti implements, or to store in inventory any graffiti implement in an unsecured area.
D. In addition to the penalties provided in this chapter, any person or business operator who displays or stores or permits the display or storage of any graffiti implement in violation of the provisions of this section, and has been served written notice of violation of this section, shall be personally liable for any and all costs, including attorneys’ fees and court costs, incurred by any party in connection with the removal of graffiti, the repair of any property containing graffiti, or such party’s prosecution of a civil claim for reimbursement for damages, arising from the use by any person of a graffiti implement which was displayed or stored in violation of this section and has been found to be directly from the place of business which has been served notice of violation of this section or any provision of the California Penal Code. (Ord. 1086 § 1, 2009.)
9.40.070 Maintenance of graffiti prohibited.
A. Notwithstanding any other provision of this code, it shall be unlawful and a misdemeanor for any person to cause or permit any graffiti to be visible from any real property, whether privately or publicly owned, a public street, sidewalk, alley, or other public right-of-way, provided the graffiti is located on real property or personal property owned, possessed, or within the custody or control of such person.
B. Each day that graffiti is visible as described in subsection (A) of this section shall constitute a separate offense and may be punished or enforced in any manner described in Chapter 1.12 HMC. (Ord. 1086 § 1, 2009.)
9.40.080 Abatement of nuisance.
A. The City Council hereby declares that the maintenance of the public nuisance conditions listed in HMC 9.40.020 are subject to abatement as set forth herein.
B. Furthermore, the City Council authorizes the appropriation and use of public funds to:
1. Remove graffiti or other inscribed material from publicly or privately owned real or personal property located within the City;
2. Repair, restore, replace, or retrofit publicly or privately owned property within the City that has been defaced with graffiti or other inscribed material that cannot be removed cost-effectively;
3. Otherwise abate graffiti attracting surfaces.
C. In instances where a property owner consents to the abatement of graffiti or graffiti attracting surfaces by the City or its agents, the City shall have the right, but not the obligation, to abate the nuisance. The City Manager, or a designee thereof, shall have the discretion to authorize graffiti abatement under this subsection subject to sufficient appropriations. The City may seek restitution from the property owner or other person(s) deemed responsible for all costs, including administrative and legal, pursuant to this chapter. (Ord. 1086 § 1, 2009.)
9.40.090 Removal by city with consent of owner.
A. The City shall implement one or more programs for the removal of graffiti and may remove the graffiti, authorize the removal of graffiti, or issue a notice to abate graffiti from publicly or privately owned real or personal property located within the City and which is visible from any public right-of-way or any other public or private property. The owner of such property will be encouraged to perform the removal with his/her own resources. If the property owner elects to have the City abate the graffiti, the City may require the property owner to post a deposit for the estimated cost of abatement, and owner may be required to agree to pay for any reasonable abatement costs incurred in excess of the deposit posted. The City shall be entitled to recover all costs associated with abatement in any manner authorized by this chapter, code, or other law.
B. The City may authorize the replacement or repair of publicly or privately owned real or personal property that has been defaced with graffiti when the City Manager determines that the graffiti cannot be removed cost-effectively.
C. Securing Owner Consent. Prior to entering onto private property for the purpose of graffiti removal, the City shall attempt to secure the written or oral consent of the responsible person, which may be incorporated into the required written notice. The responsible person may execute and file with the City a consent form that authorizes the City, without notice, to immediately enter onto the property to paint over any graffiti. Such consent shall be effective indefinitely, until withdrawn in writing by the responsible person. The City shall attempt to recover all costs of such graffiti removal consistent with state law and as defined in this chapter. (Ord. 1086 § 1, 2009.)
9.40.100 Notice to abate.
Notwithstanding any other nuisance abatement notice procedures in this code, whenever the City Manager determines the existence of a graffiti nuisance, as set forth in HMC 9.40.020, and determines that the City may need to establish the right to abate said nuisance, the City Manager shall issue a notice to abate graffiti nuisance (hereinafter “notice to abate”) to the property owner of the property on which the nuisance exists, or to any other responsible person, requiring the abatement of the nuisance within five business days of the date of service of the notice to abate, or within some other reasonable time in connection with a graffiti attracting surface. (Ord. 1086 § 1, 2009.)
9.40.110 Contents of notice to abate.
The notice to abate issued pursuant to this chapter shall be in the manner and method set forth in HMC 1.12.110. (Ord. 1086 § 1, 2009.)
9.40.120 Service of notice to abate or demand for payment.
Any notice to abate or demand for payment shall be served upon the responsible persons in the manner and method set forth in HMC 1.12.110(B). (Ord. 1086 § 1, 2009.)
9.40.130 Method of abatement.
Where graffiti is being abated by the repainting of the surface on which the graffiti exists, the property owner shall use paint that matches (to the greatest degree possible) the color of the original remaining portions of the structure being painted, or as otherwise approved by the City. As it relates to a graffiti attracting surface, a notice to abate may require, but shall not be limited to, any of the following modifications (or combinations thereof) to said building, structure, tree, shrub, sidewalk, curb, or vehicle (or the property on which said building, structure, tree, shrub, sidewalk, curb, or vehicle exists) as methods of abatement, the costs of which are to be borne by the responsible person:
A. Retrofitting of said surface or structure (at a cost not to exceed 10 percent of the assessed value of the property on which the nuisance exists, as indicated on the last equalized assessment roll of the Sonoma County assessor’s office);
B. Application and/or use of anti-graffiti materials (such as anti-etching films or anti-graffiti paints), as approved by the director of public works or his/her designee, to the surface or structure;
C. Installation of landscaping as approved by the director of planning and building or his/her designee, so as to screen or to provide a barrier to the surface or structure; and
D. Installation of additional lighting, as approved by the director of planning and building or his/her designee. (Ord. 1086 § 1, 2009.)
9.40.140 Scope of abatement utilizing public funds.
Whenever the City authorizes the use of public funds for the removal of graffiti, the painting or repairing of surfaces containing graffiti, or for the abatement of graffiti attracting surfaces, the City shall not authorize or undertake to provide for the painting or repairing of any more extensive area than that where the graffiti or graffiti attracting surface is located, unless the City Manager determines in writing that a more extensive area is required to be repainted or repaired in order to avoid aesthetic disfigurement to the neighborhood or community, or unless a responsible person agrees in writing to pay for the costs of repainting or repairing the more extensive area. (Ord. 1086 § 1, 2009.)
9.40.150 Appeal hearing request and procedure.
A. A responsible person, property owner, minor and the parent or guardian having custody and control of the minor receiving a notice to abate or demand for payment may contest said notice to abate or demand for payment pertaining to any violation of this chapter in the manner and method set forth in HMC 1.12.120.
B. Failure of the City Clerk to receive a timely request for an appeal (including payment of applicable fees) constitutes a waiver of the right to contest a notice to abate or demand for payment. In this event, the notice to abate or demand for payment is final and binding.
C. In no event does this chapter limit the right of City officials to issue alternative written or oral notices of code violations to responsible persons, or to cause the abatement of graffiti nuisances or seek restitution in a different manner, including, without limitation, by court orders arising from the City’s exercise of its criminal or civil remedies. (Ord. 1086 § 1, 2009.)
9.40.160 Notice of decision.
A. Within a reasonable time, not to exceed 10 calendar days following the conclusion of the appeal hearing, the hearing officer shall issue an administrative order in the manner and method set forth in HMC 1.12.130.
B. Any persons aggrieved by an administrative order issued pursuant to a violation of this chapter may obtain review of said administrative order in the manner and method set forth in HMC 1.12.130(B).
C. The decision of the hearing officer is final and binding and judicial review of this decision is subject to the time limits set forth in California Code of Civil Procedure Section 1094.6 et seq. Judicial review of the decision of the hearing officer shall be as described in the manner and method set forth in HMC 1.12.180 or as prescribed by law. The final order shall contain a statement in substantial conformance with the following:
The time within which judicial review of this decision must be sought is governed by C.C.P. § 1094.6 et seq. Judicial review must be sought not later than the 90th day following the date on which the decision becomes final, except that where a shorter time is provided by any State or Federal law, such shorter time limit shall apply.
D. A copy of the administrative order shall be served on all appellants (except for those determined to be not responsible) in the manner and method set forth in HMC 1.12.110(B).
E. When no appeal is filed and the City is seeking restitution for expenses incurred for graffiti abatement, the City Clerk shall prepare a final order to that effect requesting payment in conformance with this chapter. (Ord. 1086 § 1, 2009.)
9.40.170 Demand for payment/costs of abatement.
A. Once an offender has been identified and determined to be in violation of this chapter by the City, or by any other law enforcement agency or court, and the City has expended funds to remove graffiti, regardless of location, which was caused by the identified offender, the City may recover costs incurred, including reasonable administrative and legal expenses. The City shall keep an itemized record of the graffiti abatement and related administrative costs and expenses incurred by the City, with respect to the property, and the full amount of these expenses shall be due and payable by the property owner within 30 days of the removal or issuance of the final order. If the City Manager determines that the City should recover funds from the offender or, if a minor, the minor and the parent or guardian having custody and control of the minor, the City Clerk shall issue a final order, and a demand for payment to that effect, and the amount shall be payable to the City.
B. In the event the funds have not been paid within 10 calendar days from the date of issuing an accounting, final order and demand for payment, the amount unpaid, including any penalty and interest thereon, shall constitute a lien pursuant to and in accordance with Government Code Sections 38772 and 38773.2 against the property of the offender, responsible person, property owner, or minor and the parent or guardian having custody and control of the minor.
C. The costs of abatement, including reasonable administrative costs, performed by City employees or its agents thereof shall constitute a personal obligation against the responsible persons and may be assessed and collected in any, or all, of the following manners:
1. Any manner provided by City Council resolution.
2. As provided in HMC 1.12.160.
3. Submission from the City for demand for payment, ordering payment to be made to the City within 10 calendar days. The demand for payment shall also contain a notice of the appeal procedures.
4. If the identified offender is a minor, then pursuant to Government Code Section 53069.3(d), the City will submit a demand for payment to the minor and the minor’s parents or guardian having custody and control of the minor, ordering payment to be made within 10 days. The demand for payment shall also provide the parents or guardian with notice of appeal procedures.
5. Pursuant to an order of restitution by a court of competent jurisdiction in accordance with any applicable state or federal law.
6. Graffiti abatement lien or special assessment against any property owned by any person (including a minor and the parent or guardian of any minor) who creates, causes, or commits a graffiti nuisance, as authorized by and in accordance with this chapter and any other applicable state or federal law.
7. Any other manner provided or authorized by law. (Ord. 1086 § 1, 2009.)
9.40.180 Appeals for demand for payment.
Any appeal for demand for payment shall be submitted and processed in conformance with HMC 9.40.150 and 9.40.160. (Ord. 1086 § 1, 2009.)
9.40.190 Prevention of graffiti through land use entitlements.
A. In approving subdivision maps, conditional use permits, variances, or other land use entitlements, the City shall consider imposing conditions reasonably related to the control of graffiti and/or the mitigation of the impacts of graffiti. Such conditions may include, without limitation, any or all of the following:
1. Installation and use of anti-graffiti materials, as approved by the director of planning and building or his/her designee, on surfaces which are likely to be graffiti attracting surfaces;
2. Installation and use of landscaping to screen or provide a barrier to surfaces prone to graffiti or likely to be a graffiti attracting surface;
3. Installation and use of additional lighting to areas that are likely to be graffiti attracting surfaces and areas adjacent thereto;
4. Immediate removal of any graffiti at the property;
5. Authorizing right of access by City forces to remove graffiti; and
6. Supplying the City with sufficient matching paint and/or anti-graffiti material on demand for use in the abatement of graffiti by City forces or agents.
B. The City may require applicants for any subdivision maps, conditional use permits, variances, or other land use entitlements to record against the property any conditions of approval contained in subsection (A) of this section or any other conditions of approval relating to graffiti control or prevention. If required, the applicant shall record those conditions of approval in a form satisfactory to the City with the Sonoma County assessor’s office, and such conditions of approval shall run with the land and bind all future owners of the property and any and all successors in interest of the property. (Ord. 1086 § 1, 2009.)
9.40.200 Reward for information.
A. Pursuant to California Government Code Section 53069.5, the City Council may, by resolution, establish a reward for information leading to the identification, apprehension, or conviction of any person who places or applies graffiti upon any public or private property in the City. For the purposes of this section, diversion of the offending violator to a community service program, or a plea bargain to a lesser offense, shall constitute a conviction.
B. Any person committing graffiti vandalism, and if said person is an unemancipated minor, then the parent or lawful guardian of said minor shall be civilly liable for any reward paid pursuant to this section and Section 53069.5 of the Government Code. (Ord. 1086 § 1, 2009.)
9.40.210 Parental responsibility.
A. Pursuant to California Civil Code Section 1714.1(b), where graffiti is applied by an unemancipated minor as the result of the willful misconduct of said minor, the parent or legal guardian of said minor shall be jointly and severally liable for payment of civil damages resulting from the misconduct of the minor in an amount not to exceed $25,000 for each such offense or any higher amount authorized by any amendment to California Civil Code Section 1714.1(b). The parent or legal guardian of said minor shall also be civilly liable for any reward paid pursuant to this chapter or other applicable law.
B. Pursuant to and in accordance with Government Code Sections 38772, 38773.2 and 38773.6, a parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor for the funds expended by the City when such joint and several liability is applicable. If payment is not made within 30 days from the date of the accounting and a demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of $100.00 plus interest on the unpaid amount, which interest shall accrue at the rate of one and one-half percent per month until paid. (Ord. 1086 § 1, 2009.)
9.40.220 Penalties.
A. Penalties. Any violation of this chapter shall constitute a misdemeanor offense and shall be subject to the penalties set forth in HMC 1.12.140 and any other applicable law.
B. Whenever deemed appropriate, it is the City’s intent to petition a sentencing court to impose additional penalties or conditions upon any grant of probation, diversion, or deferred entry of judgment, in a manner permitted by applicable laws relating to graffiti laws.
C. The remedies provided in this chapter are in addition to other remedies and penalties available under provisions of other applicable City ordinances, the laws of the state of California, or the laws of the United States. (Ord. 1086 § 1, 2009.)