3-14
GRAFFITI1:
3-14.1 Intent:
It is the intent of the provisions of this section to provide an immediate and practical method, to be cumulative with and in addition to any other remedy available at law, whereby graffiti or other inscribed or affixed material may be removed from permanent structures located on public or privately owned real property in order to reduce blight and deterioration within the city. (Ord. #1536, §1)
3-14.2 Findings:
Graffiti constitutes an obnoxious public nuisance. The city council finds that graffiti or other inscribed or affixed materials placed upon any permanent structure, real or personal property visible from any publicly owned property, is found to be obnoxious and constitutes a public nuisance. As such, the city may abate graffiti as a nuisance and recover its costs in abating the nuisance pursuant to section 3-13 of this chapter. Such costs include, but are not limited to, court costs, attorney fees, rewards, costs of removal of the graffiti, costs of repair and replacement of defaced property, costs of administering and monitoring the participation of the defendant and his or her parents or guardians in a graffiti abatement program, and the law enforcement costs incurred by the city in identifying and apprehending the person who created, caused or committed the graffiti or other inscribed or affixed material on the publicly or privately owned real or personal property within the city. (Ord. #1536, §1)
3-14.3 Definitions:
For the purposes of this section, unless it is plainly evident from the context that a different meaning is intended, the following definitions shall apply:
Aerosol paint container means any aerosol container which is adapted or made for the purpose of spraying paint or other substance capable of defacing property.
Etching cream means any caustic cream, gel, liquid, or solution capable, by means of a chemical action, of defacing, damaging, or destroying hard surfaces in a manner similar to acid.
Etching tool means an instrument, tool or device designed or commonly used for making, cutting or defacing glass and includes devices designed for marking surfaces and capable of marking glass.
Expense of abatement includes, but is not limited to, court costs, attorney 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, Los Angeles County, or the city and county in identifying and apprehending the minor or other person who placed the graffiti on real or personal property.
Felt tip marker means any indelible marker or similar implement with a tip which, at its broadest width is greater than four millimeters (4 mm), containing ink that is not water soluble.
Graffiti means any inscription, word, figure, mark or design which is written, marked, etched, scratched, scribed, drawn, painted, posted or otherwise affixed to or on real or personal property.
Graffiti implement means any aerosol container, etching cream, felt tip marker, paint stick, etching instrument, stickers, decals, stencils or any other device containing paint, ink, chalk, dye or similar substance which when used or applied is capable of defacing glass, metal, concrete or wood.
Minor means a person who is under eighteen (18) years of age.
Parent means either parent if both parents have legal custody, or the parent or person having legal custody, or the guardian of a minor.
Responsible party means an owner of property located within the city, a person with primary responsibility for control of property within the city or a person with primary responsibility for the repair or maintenance of property within the city. (Ord. #1536, §1)
3-14.4 Removal Of Graffiti:
a. Right Of City To Require Removal: It is unlawful for any responsible party to permit the property which is defaced with graffiti to remain so defaced for a period of forty eight (48) hours after telephonic notice or posting of notice by city on the property. This prohibition does not apply if:
1. The responsible party demonstrates by a preponderance of evidence that he or she does not have the financial ability to remove the defacing graffiti; or
2. The responsible party demonstrates that he or she has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it is unlawful to permit such property to remain defaced with graffiti for a period of three (3) calendar days after written notice is posted on the property and mailed first class, postage prepaid, to the address of the property.
b. Right Of City To Remove:
1. Use Of Public Funds: Whenever the city becomes aware, or is notified and determines that graffiti is located on public or privately owned property, is viewable from a public or quasi-public place within the city, the city is authorized to use public funds for the removal, repair or replacement of the same. The city will not authorize or undertake to remove, repair or replace any more extensive area than that where the graffiti is located, unless the city determines 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 the responsible party agrees to pay for the costs of repainting or repairing the more extensive area.
2. Right Of Entry On Private Property:
(a) Securing Owner Consent: Prior to entering private property, or property owned by another public entity, for the purposes of graffiti removal, the city shall attempt to secure the consent of the responsible party and a release of the city from liability for private or public property damage.
(b) Failure To Obtain Owner Consent: The city may commence abatement and cost recovery proceedings for the removal of the graffiti pursuant to the provisions of this section.
c. Method Of Removal:
1. Common Utility Colors And Paint-Type: Any gas, telephone, water, sewer, cable, and other utility operating in the city, other than an electric utility, will paint their above surface metal fixtures installed after the effective date of this section, with a uniform paint type and color.
2. Conditions On Encroachment Permits: Encroachment permits issued by the city may, among other things, be conditioned on any of the following: a) the permittee applying an antigraffiti material to the encroaching object or structure of a type and nature that is acceptable to the city; b) the immediate removal by the permittee of any graffiti; c) the right of the city to remove graffiti or to paint the encroaching object or structure; d) the permittee providing city with sufficient matching paint and/or antigraffiti material on demand for use in the painting of the encroaching object or structure containing graffiti.
3. Conditions On Discretionary Approvals: In imposing conditions upon unclassified use permits, variances, building permits, design or development applications or other similar land use entitlements, the city may impose graffiti removal requirements on any or all of the following conditions:
(a) Use Of Antigraffiti Material: The applicant must apply an antigraffiti material to publicly viewable surfaces which will be constructed on the site and which the city deems are likely to attract graffiti (referred to hereafter as “graffiti attracting surfaces”). Such material must be approved by the city in advance.
(b) Right Of Access To Remove Graffiti: The applicant must grant to the city, in writing, the right of entry over and access to such parcels for the purpose of removing or “painting over” graffiti on graffiti attracting surfaces previously designated by the city. Such entry will only be allowed upon forty eight (48) hours’ posted notice. This grant will be an express condition of approval and will run with the land.
(c) Supply City With Graffiti Removal Material: For a specified period of years after approval, the applicant, and any and all successors in interest, must provide the city with sufficient matching paint and/or antigraffiti material on demand for use in the painting over or removal of graffiti on the designated graffiti attracting surfaces.
(d) Owner To Immediately Remove Graffiti: Persons applying for subdivision maps must, as part of the conditions, covenants and restrictions, agree in covenant that the owners of the lots will immediately remove any graffiti placed on publicly viewable trees and structures thereon to the city’s satisfaction. Such covenants will run with the land and must be in a form satisfactory to the city.
d. Preservation Procedures Adopted Pursuant To California Government Code Section 53069.3(c) (2): Prior to or during removal, the city will follow any procedures adopted by the Los Angeles County sheriff’s department for preremoval preservation of sufficient evidence of the graffiti for criminal prosecutions or proceedings under section 602 of the Welfare and Institutions Code. (Ord. #1536, §1)
3-14.5 Storage, Display And Sale Of Aerosol Spray Paint Containers, Etching Cream And Marker Pens:
Any person who owns, conducts, operates, manages or carries on any business, company, shop or retail commercial enterprise, including, without limitation, any swap meet or garage sale, which sells aerosol spray paint containers, marker pens with tips exceeding four millimeters (4 mm) in width or etching cream, containing anything other than a solution which can be removed with water after it dries, shall cause such aerosol containers, marker pens or etching cream to be stored, maintained or displayed in a place or manner which is locked or secured so as not to be accessible to the public except with the assistance of the seller or the seller’s employees. (Ord. #1536, §1)
3-14.6 Possession - Prohibition Of Spray Paint In Public Parks And Buildings:
Pursuant to California Penal Code section 594.1(d), it is unlawful for any person to carry on his or her person and in plain view to the public etching cream or an aerosol container of paint while in any posted facility, park, playground, swimming pool, or recreational area owned, operated or maintained by the city (other than a highway, street or alley). This prohibition against possession does not apply to authorized employees or agents of the city or a person having the authorization of an authorized employee or agent of the city. The community services director, or his or her designee, will post a notice at appropriate locations indicating that, pursuant to California Penal Code section 594.1(d), no person shall possess etching cream or any can of spray paint in that city owned building, park, playground, swimming pool, recreational area or other city facility without the permission of an authorized city officer. (Ord. #1536, §1)
3-14.7 Rewards:
Pursuant to California Government Code section 53069.5, the city may, from time to time, offer a reward in an amount set by resolution of the city council for information leading to the arrest and conviction of any person for violation within the city of California Penal Code section 594, 594.3, 640, 640.5, or 640.6.
a. In the event of multiple, verifiable sources of information, the city or its designee will divide the reward in the manner it deems appropriate.
b. For the purposes of this section, diversion of the violator to a community service program, or a plea bargain to a lesser offense, constitutes a conviction.
c. Claims for rewards under this section must be filed with the city or its designee prior to the conviction of a person and must:
1. Specifically identify the date, location and kind of property damaged or destroyed;
2. Identify by name the person who was convicted;
3. Identify the court and the date upon which the conviction occurred; and
4. Be in writing and filed within ninety (90) days of such conviction.
d. No reward will be granted until the city or its designee investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied.
e. The person committing the graffiti-vandalism, and if a minor, then his or her parent or lawful guardian will be civilly liable for any reward paid pursuant to this section and Government Code section 53069.5. (Ord. #1536, §1)
3-14.8 Recovery Of Law Enforcement Costs:
a. Pursuant to California Penal Code section 594, the court may order a person convicted of violating California Penal Code section 594 to pay all or part of the law enforcement costs incurred in identifying and apprehending the defendant. The court will first determine whether the defendant has the ability to pay the costs, not exceeding two hundred fifty dollars ($250.00). If the defendant does have such ability, the court will order defendant to pay the costs; however, such order shall not exceed two hundred fifty dollars ($250.00). The law enforcement agency must provide evidence of, and bears the burden of establishing the reasonableness of, such costs.
b. The law enforcement costs authorized in subsection 3-14.8a of this section are in addition to any other costs incurred or recovered by the law enforcement agency, and payment of these costs does not in any way limit, preclude, or restrict any other right, remedy, or action otherwise available to the law enforcement agency. (Ord. #1536, §1)
3-14.9 Nuisance Abatement:
a. Cost Of Abatement: Pursuant to California Government Code section 38772, any minor or other person who creates, causes or commits a nuisance by defacing the property of another with graffiti is liable for the cost of abatement of the nuisance caused. The city may recover this cost by making the expense of abatement a lien against the property of the minor or the minor’s parent, in accordance with the procedures set forth in this section.
1. For purposes of this section, the following definitions apply:
“Minor” or “other person” means a minor or other person who has confessed to, admitted to, or pled guilty or nolo contendere to a violation of section 594, 594.3, 640.5, 640.6, or 640.7 of the California Penal Code; or a minor convicted by final judgment of a violation of section 594, 594.3, 640.5, 640.6, or 640.7 of the California 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 section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code.
b. Procedures:
1. To recover the expense of abatement, the city will give notice to the minor prior to the recordation of a lien on the parcel of land owned by the minor and notice to the parent prior to the recordation of a lien on the parcel of land owned by the parent. This notice will be served in the same manner as a summons in a civil action pursuant to article 3 (commencing with section 415.10) of chapter 4 of title 5 of part 2 of the California Code of Civil Procedure.
2. Notice when minor or parent cannot be found.
(a) If the minor, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the minor, in a conspicuous place, for a period of ten (10) days. The notice must also be published pursuant to Government Code section 6062 in a newspaper of general circulation that is published in the county in which the property is located.
(b) If a minor’s parent, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the parent in a conspicuous place for a period of ten (10) days. The notice must also be published pursuant to Government Code section 6062 in a newspaper of general circulation that is published in the county in which the property is located.
3. A graffiti nuisance abatement lien will be recorded in the county recorder’s office in the county in which the parcel of land is located. From the date of recording, the lien shall have the force, effect, and priority of a judgment lien.
4. A graffiti nuisance abatement lien authorized by this section will specify the amount of the lien; the name of the agency on whose behalf the lien is imposed; the date of the abatement order; the street address, legal description, and assessor’s parcel number of the parcel on which the lien is imposed; and the name and address of the recorded owner of the parcel.
5. A graffiti nuisance abatement lien may be satisfied through foreclosure in an action brought by the city.
6. If the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection 3-14.9b4 of this section shall be recorded by the city. A graffiti nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.
7. If the county recorder imposes a fee on the city to reimburse the costs of processing and recording the lien and providing notice to the property owner, the city may recover from the property owner any costs incurred for processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.
c. Alternative Procedure For Assessment: As an alternative to the lien in subsections 3-14.9a and b of this section, the city may make the abatement and related administrative costs a special assessment against a parcel of land owned by the minor or by the parent, in accordance with the procedures set forth in section 3-13 of this chapter. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected and are subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the abatement and related administrative costs relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon prior to the date on which the first installment of the taxes would become delinquent, then the abatement and related administrative costs will not result in a lien against the real property but will instead be transferred to the unsecured roll for collection. Notices or instruments relating to the abatement proceeding or special assessment may be recorded. (Ord. #1536, §1)
3-14.10 Suspension Or Delay Of Driving Privileges:
For each conviction of a person aged thirteen (13) years or older, for violation of this section or any state law pertaining to vandalism of property with a graffiti implement, the city shall petition the sentencing court to suspend existing driving privileges or delay the issuance of driving privileges in accordance to California Vehicle Code section 13202.6. (Ord. #1536, §1)
3-14.11 Parental Responsibility:
Pursuant to California Civil Code section 1714.1(D), where graffiti is applied by a minor, the parents or legal guardians 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 twenty five thousand dollars ($25,000.00) for each such offense. (Ord. #1536, §1)
3-14.12 Failure To Remove Graffiti Upon Notice - Penalty:
In addition to any costs incurred by the city for the abatement of graffiti from private property, failure to voluntarily abate graffiti after notice shall result in the following penalties:
a. The failure of any person, firm, partnership or corporation in failing to remove graffiti within the prescribed period as set forth in this section constitutes an infraction and is punishable by a fine of one hundred dollars ($100.00) upon first conviction thereof.
b. Any person, firm, partnership or corporation convicted of violating any provisions of this section for a second time shall be guilty of an infraction and shall be punished by a fine of two hundred fifty dollars ($250.00).
c. Any person, firm, partnership or corporation convicted of violating any provisions of this section for a third time or any subsequent number of times shall be guilty of an infraction and shall be punished by a fine of five hundred dollars ($500.00).
d. Any person, firm, partnership or corporation previously convicted of violating any provisions of this section for a third time shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished as provided in subsection 3-14.13 of this section. (Ord. #1536, §1)
3-14.13 Penalty For Violation Of This Section:
It shall be unlawful for any person, firm, partnership or corporation to violate any provision or fail to comply with any of the requirements of this section to remove graffiti.
a. Except as provided above, any person, firm, partnership or corporation violating any provision of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment not exceeding six (6) months, or both such fine and imprisonment. Each such person, firm, partnership or corporation violating any provision of this section shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of this section is committed, continued or permitted by such person, firm, partnership or corporation and shall be deemed punishable therefor as provided in this section or the California Penal Code.
b. Notwithstanding the penalties set forth herein, any person who maliciously defaces, damages or destroys property with a graffiti implement is guilty of vandalism, pursuant to California Penal Code section 594 and upon conviction thereof shall be punished by imprisonment in the state prison or in the county jail for a period not to exceed one year, or by fine of five thousand dollars ($5,000.00) but no more than fifty thousand dollars ($50,000.00) depending on the severity and the amount of the defacement, damage or destruction to property or by both such fine and imprisonment.
c. The penalties set forth in this section are not exclusive and may be used in addition to those set forth elsewhere in this code or by law. (Ord. #1536, §1)
3-14.14 Community Service:
a. Upon conviction of any person for violation of this section or any state law pertaining to vandalism of property with a graffiti implement, the city shall petition the sentencing court to impose community service time, pursuant to California Penal Code section 640.6. The sentencing court may require the performance of community service within the city in addition to any monetary penalties imposed. In the event the sentencing court approves community service, the city shall request any adult or emancipated minor convicted of vandalism, as defined by California Penal Code section 594(a)(1) to: 1) complete a minimum of twenty four (24) hours, but no more than forty eight (48) hours of community services cleaning up, removing and repairing property damaged by graffiti for the first conviction and 2) complete forty eight (48) hours, but no more than ninety six (96) hours of community services cleaning up, removing and repairing property damaged by graffiti for each subsequent conviction.
b. Any person who is under the age of eighteen (18) when he or she violates any provision of this section or any state law pertaining to vandalism of property with a graffiti implement and is found to be the person described in California Welfare and Institutions Code section 602 by reason of the commission of vandalism, may be required to perform community service time pursuant to California Welfare and Institutions Code section 728. For any minor found guilty of vandalism, the city shall petition the juvenile court and the court may, in addition to any other penalties imposed by the city, require the minor to provide the necessary labor to cleanup, repair or replace the defaced, damaged or destroyed property, or otherwise make restitution to the property owner.
c. If a minor is personally unable to pay any fine levied for violating any provision of this section or is otherwise unable to make restitution for damages, the minor’s parent or legal guardian shall be liable for payment of the fine or restitution. If the parent or legal guardian cannot make restitution, the sentencing court may waive payment of the fine or community service time by the parent or legal guardian upon a finding of good cause. If the sentencing court waives the payment of the fine by the parent or legal guardian, the city shall petition the sentencing court, and the court at its option, may order the parents or legal guardian to provide the necessary labor equal to the number of hours assigned to the minor deemed guilty of violating any provision of this section, to cleanup, repair or replace property damaged by the minor. (Ord. #1536, §1)
3-14.15 Additional Remedies:
The remedies set forth in this section are not exclusive and may be used in addition to those set forth elsewhere in this code or by law. (Ord. #1536, §1)
3-14.16 Violations:
A violation of subsection 3-14.5 or 3-14.6 of this section is a misdemeanor which is punishable by the general penalty of section 1-5 of this code. (Ord. #1536, §1)
3-14.17 Severability:
The city council declares that, should any provision, subsection, paragraph, sentence or word of this section be rendered or declared invalid by any final court action, in a court of competent jurisdiction, or by reason of any preemptive legislation, the remaining provisions, subsections, paragraphs, sentences and words of this section shall remain in full force and effect. (Ord. #1536, §1)
Prior ordinance history: Ord. #1329.