Chapter 8.21
SUMMARY ABATEMENT OF GRAFFITI

Sections:

8.21.010    Purpose.

8.21.020    Definitions.

8.21.030    Prohibition of graffiti.

8.21.040    Abatement.

8.21.050    Request for administrative hearing.

8.21.060    Abatement costs.

8.21.010 Purpose.

A. The purpose of this chapter is to provide a program and enforcement tools, in addition to those already provided by state law, to remove graffiti from walls and structures on both public and private property and to prevent and control the further spread of graffiti in the City. The increase of graffiti on both public and private buildings, structures and places is creating blight within the City which results in deterioration of property and business values for adjacent and surrounding properties, all to the detriment of the City.

B. In order to prevent graffiti and to provide an immediate and practical method of combating the effects of graffiti vandalism on public and privately owned structures and real property, the City Council hereby finds that graffiti is a nuisance because it is detrimental to property values, degrades the community, encourages additional crime, is inconsistent with the City’s property maintenance goals and aesthetic standards, is an obnoxious nuisance, and unless it is quickly removed from public and private property, results in other properties becoming the target of graffiti.

C. The City Council declares its intent, through the adoption of this chapter, to give notice to all who disregard the property rights of others that the City will enforce all laws prohibiting graffiti, including but not limited to Sections 594, 594.1, and 640.5 of the California Penal Code, Section 13202.6 of the California Vehicle Code, and the provisions of this chapter. (Ord. 2150 § 1 (Exh. A), 2023)

8.21.020 Definitions.

As used in this chapter, the terms set forth below are defined as follows:

“Cover” means to apply over the graffiti graffiti-resistant products that substantially match the original surface, color, and texture.

“Graffiti” means vandalism consisting of defacing, tagging, marring, inscribing, etching, scratching, painting, pasting, or affixing of other markings on buildings, improvements, fixtures, or structures, including, but not limited to, walls, fences, signs, retaining walls, driveways, sidewalks, pavement, curbs, curbstones, street lamp posts, hydrants, trees, electric light or power or telephone or telegraph or trolley wire poles, fire alarms, drinking fountains, vehicles, statues and sculptures, newspaper stands, or garbage receptacles without the prior consent of the owner of the property on which the surface is located, regardless of the nature of the material. “Graffiti” does not refer to any particular style of writing or art and does not include:

1. Any sign or banner that is authorized by, and in compliance with, the applicable requirements of this code;

2. Any mural or other painting or marking on the property that is protected as a work of fine art under the California Art Preservation Act (California Civil Code Section 987 et seq.) or as a work of visual art under the federal Visual Artists Rights Act of 1990 (17 U.S.C. Section 101 et seq.); or

3. Any art work consented to in advance by the property owner.

“Owner” and “property owner” means the person identified in the last equalized assessment roll prepared by the Alameda County assessor, or in the records maintained by the Alameda County recorder, whichever is most current.

“Responsible party” means any owner; property owner; person leasing, renting or occupying property; and any person having charge, control, or possession of any property, as well as any other person, that causes, creates, permits, maintains, tolerates, or allows any public nuisance activity or condition to be created or exist.

“Removal” means to repair, replace, remove, cover, or otherwise eliminate the graffiti by such means and in such manner and to such an extent that the graffiti is no longer visible, without creating an unsightly condition on affected surface. (Ord. 2150 § 1 (Exh. A), 2023)

8.21.030 Prohibition of graffiti.

A. It is unlawful for any person to apply graffiti upon any property within the City.

B. It is unlawful for any person owning, leasing, renting, occupying, managing, or having charge or possession of any property in the City to maintain or allow to be maintained graffiti on such property if the graffiti, or any portion of it, is visible to the public from a public or private street, sidewalk or from other properties, public or private. (Ord. 2150 § 1 (Exh. A), 2023)

8.21.040 Abatement.

Graffiti shall be abated as follows:

A. Whenever an enforcement officer charged with the enforcement of this chapter determines that graffiti exists, the enforcement officer shall notify a responsible party of the existence of graffiti and shall direct such party to abate the graffiti by issuing a notice and order to abate.

B. Contents of a Notice and Order to Abate Graffiti. The notice and order to abate shall contain the following information:

1. The responsible party and the property owner of the location where the graffiti exists, and the street address, legal description, or other description of the property where the graffiti exists.

2. A description and location of the graffiti.

3. A statement directing the responsible party and property owner to abate the graffiti within seven calendar days from the date the notice and order to abate is posted.

4. A statement that all responsible parties shall be jointly and severally responsible for the administrative charge and all costs and expenses to abate the graffiti that are incurred by the City from the date that the notice and order to abate is posted.

5. A statement that within 48 hours of the notice and order to abate posting the responsible party may request an administrative hearing with the Community Development Department to contest the notice and to show cause why the activity or condition should not be abated or why the administrative charge should not be assessed.

6. A statement that if the responsible party does not request a hearing within 48 hours of the notice posting or abate the graffiti within seven calendar days of notice and order posting, the City will take action to abate the graffiti including entering the subject property where the graffiti exists, and that the total costs and expenses to abate the graffiti incurred by the City will also become a charge against the owner and a lien or special assessment against the property until paid.

7. A statement that failure to file a timely and complete request for an administrative hearing shall constitute a waiver of all rights to a hearing and a waiver of all rights to maintain an action to modify or set aside an enforcement officer’s notice and order to abate, and any City abatement action.

C. Manner of Giving Notice.

1. The notice and order to abate shall be posted in a conspicuous place upon the subject property. Notice is deemed complete at the time the notice and order to abate is posted on the subject property.

2. The failure of the responsible party or owner to receive any notice required by this chapter shall not affect the validity of proceedings under this chapter.

D. Abatement by City. A responsible party may and should, at their own expense, abate the graffiti. If a responsible party does not abate the graffiti, then the City may abate the nuisance graffiti as set forth in LMC 8.15.140. (Ord. 2150 § 1 (Exh. A), 2023)

8.21.050 Request for administrative hearing.

A. Within 48 hours of the time of posting the notice, the responsible party or property owner may submit a request, by email or in writing, with the Community Development Department for an administrative hearing to contest the notice and to show cause why the activity or condition should not be abated or why the administrative charge should not be assessed.

B. A request for an administrative hearing must contain the information required under LMC 8.15.090(B).

C. Failure to file a timely and complete request for an administrative hearing shall constitute a waiver of all rights to a hearing and a waiver of all rights to maintain an action to modify or set aside an enforcement officer’s notice and order to abate, and any City abatement action.

D. Appointment and Scheduling. Upon receipt of a timely and complete request for an administrative hearing, the Community Development Director, or his or her designee, will appoint a hearing officer within 48 hours or two business days. A hearing shall be scheduled within 10 business days after the appeal request was received, or such later date as mutually agreed to by the parties.

E. Administrative Hearing Costs. The responsible party is not required to pay the cost for the administrative hearing in advance of the hearing, but if the hearing officer upholds the notice and order to abate, or any part thereof, then the administrative hearing costs will be added to the costs and expenses to abate the graffiti to be collected or assessed as a lien.

F. Decision and Order. At the conclusion of the administrative hearing, unless extended by mutual agreement of the parties, the hearing officer shall issue a verbal decision at conclusion of the hearing and a written decision and order within five calendar days to uphold, modify, or set aside the notice and order to abate, or any portions thereof, as well as any other items consolidated in the hearing. The written decision shall state the reasons for the decision, including the hearing officer’s factual findings and conclusions. (Ord. 2150 § 1 (Exh. A), 2023)

8.21.060 Abatement costs.

A. Administrative Charge. If a notice and order to abate is issued, the person engaged in the nuisance activity, and the property owner and responsible party for the property nuisance, shall be assessed an administrative charge pursuant to LMC 8.15.080.

B. Abatement Costs. As set forth in LMC 8.15.150, each and every responsible party is liable to the City for the costs and expenses to abate the nuisance graffiti that are incurred by the City and accrue from the date delivery of the notice and order to abate is deemed complete.

C. Collection of Unpaid Costs and Expenses to Abate the Nuisance. The City may pursue any and all legal and equitable remedies to collect the administrative charge and all other costs and expenses to abate the nuisance that are owed to the City, pursuant to LMC 8.15.160.

D. City Council Confirmation Hearing for Lien. As set forth in LMC 8.15.170, if a graffiti nuisance is abated by the City pursuant to LMC 8.15.140, the enforcement officer may present the statement of the costs and expenses to abate the nuisance to the City Council for confirmation at a public hearing at a regular City Council meeting. At that public hearing, the City Council shall also determine whether to impose a nuisance abatement lien or special assessment on the subject property owned by the responsible party pursuant to either LMC 8.15.180 or 8.15.190, respectively, for those costs and expenses.

Additionally, the City may enforce LMC 8.15.200, 8.15.210, 8.15.220, 8.15.230, 8.15.240 and 8.15.250 as applicable. (Ord. 2150 § 1 (Exh. A), 2023)