Chapter 10.59
GRAFFITI
Sections:
10.59.030 Graffiti Prohibition—Declaration of Public Nuisance.
10.59.040 Possession of Graffiti Implement by Minors.
10.59.050 Sale and Display of Graffiti Implements.
10.59.060 Possession of Graffiti Implement in Public Places.
10.59.070 Graffiti Toleration.
10.59.090 Abatement and Cost Recovery Proceedings.
10.59.110 Penalties for Violations.
10.59.120 Community Service Option.
10.59.010 Purpose.
The purpose of this chapter is to provide a program for the removal of graffiti from public and private property and to provide regulations to prevent and control the further spread of graffiti as well as other acts of vandalism and defacement of property in the City of Newport Beach. The City Council finds and determines as follows:
1. The increase of graffiti, on both public and private property, results in blight, deterioration of property values and deprivation of the right to comfortable enjoyment of life and property for adjacent and surrounding residents and owners.
2. Graffiti is obnoxious, constitutes a public nuisance, and is a threat to public safety which must be abated to prevent the further spread of graffiti.
3. Graffiti must be removed as quickly as possible to avoid or minimize harm to persons and property in the community.
4. This chapter is consistent with provisions of the California Government Code which authorize the enactment of ordinances to provide for the use of City funds to remove graffiti (California Government Code Section 53069.3), and to pay rewards (California Government Code Section 53069.5).
5. This chapter is intended to be complementary to and not in conflict with California Penal Code Section 594, which provides that any person who maliciously defaces property is guilty of vandalism, and Section 594.1, which provides that certain activities involving the possession, sale and use of aerosol paint containers are misdemeanors. (Ord. 2023-22 § 482, 2023; Ord. 93-14 § 1 (part), 1993)
10.59.020 Definitions.
1. Graffiti: The term “graffiti” shall mean any unauthorized inscription, word, figure, or design that is marked, etched, scratched, drawn, sprayed, painted or adhered on any surface of public or private property, buildings, structures and places, including but not limited to any building, wall, curb, sidewalk, sign, post, pole, lamppost, hydrant, bridge, vehicle (including watercraft), tree or other permanent surface.
2. Aerosol Paint Container: The term “aerosol paint container” shall mean 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.
3. Felt Tip Marker: The term “felt tip marker” shall mean any marker or similar implement with a tip which is greater than one-eighth inch, containing an ink or other pigmented liquid.
4. Paint Stick or Graffiti Stick: The term “paint stick or graffiti stick” shall mean 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 one-eighth inch.
5. Gum Label: The term “gum label” shall mean any sheet of paper, fabric, plastic, or other substance with an adhesive backing which is not easily removable when placed on a surface.
6. Graffiti Implement: The term “graffiti implement” shall mean an aerosol paint container, a felt tip marker, a paint stick, gum label or etching tool capable of marking or scarring glass, metal, concrete or wood. (Ord. 2023-22 § 483, 2023; Ord. 93-14 § 1 (part), 1993)
10.59.030 Graffiti Prohibition—Declaration of Public Nuisance.
It is unlawful for any person to paint, chalk, etch, deface or otherwise apply graffiti on or to any public or privately owned property within the City.
Graffiti that is visible from public property or private property open to the public is declared to be a public nuisance. (Ord. 93-14 § 1 (part), 1993)
10.59.040 Possession of Graffiti Implement by Minors.
A. It is unlawful for any person under the age of eighteen (18) years, while upon public property, or upon private property without the prior written consent of the owner of such property, to possess any graffiti implement for the purpose of defacing property.
B. The provisions of subsection (A) 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, in writing, the use of any graffiti implement. (Ord. 93-14 § 1 (part), 1993)
10.59.050 Sale and Display of Graffiti Implements.
A. It is unlawful for any person, firm, or corporation to sell, exchange, give, loan or otherwise furnish any graffiti instrument to any person under the age of eighteen (18) years. The provisions of this section do not apply to any sale, exchange, gift, or loan of a graffiti implement to a minor by the minor’s parent or legal guardian.
B. Every person who owns, operates or manages a retail commercial establishment, shall cause containers, such as aerosol paint containers, paint sticks, felt tip markers, or marking pens to be stored in an area viewable by, but not accessible to, the public. It is the intent of this section to permit, but not to require aerosol paint containers, paint sticks, and felt tip markers or marking pens to be visible while they are stored or displayed pending retail sale. (Ord. 93-14 § 1 (part), 1993)
10.59.060 Possession of Graffiti Implement in Public Places.
It is unlawful for any person to have in his or her possession, and in plain view any graffiti implement while in any posted public facility, park, playground, swimming pool, recreational area, beach, parking lot, alley, public building or other public right-of-way in the City of Newport Beach, unless he or she has first received authorization from the City of Newport Beach or other authority having jurisdiction over the public area. (Ord. 93-14 § 1 (part), 1993)
10.59.070 Graffiti Toleration.
Graffiti which remains visible from public property, or private property open to the public, for more than forty-eight (48) hours is a public nuisance. The forty-eight (48) hour removal period shall commence when the owner or person in control of the property has been notified of the existence of graffiti on his or her property. (Ord. 93-14 § 1 (part), 1993)
10.59.080 Graffiti Removal.
Whenever the City Manager makes a finding that graffiti is located on any public or privately owned property within this City so as to be visible from any public property or private property open to the public in this City, and that said graffiti is obnoxious, the City Manager is authorized to provide for the removal of the graffiti solely at the City’s expense, without reimbursement from the property owner upon whose property the graffiti has been applied, upon the following conditions:
1. The City shall not paint or repair a more extensive area than is necessary to remove the graffiti;
2. Where the structure or permanent surface is owned by a public entity other than this City, the removal of the graffiti maybe performed only after securing the consent of the public entity having jurisdiction over the structure or permanent surface and only after such entity executes an appropriate release and right of entry form permitting such graffiti removal; and
3. Where the structure or permanent surface is privately owned, the removal of the graffiti by City employees or by a private contractor under the direction of the City Manager may be performed only after securing the consent of the owner and only after the owner executes an appropriate release and right of entry form permitting such graffiti removal. (Ord. 93-14 § 1 (part), 1993)
10.59.090 Abatement and Cost Recovery Proceedings.
In those instances when the City cannot obtain the consent of the property owner as provided in Section 10.59.080, the City Manager shall commence the abatement procedure described herein. Upon discovering the existence of graffiti on publicly or privately owned property within the City and which is visible from any public property or private property open to the public, the City Manager shall have the authority to cause the abatement and removal thereof in accordance with the following procedure:
A. Notice. The City Manager shall issue a forty-eight (48) hour written notice of intention to abate and remove the graffiti as a public nuisance and shall serve such notice by any of the following methods:
1. By personal service on the owner, occupant or person in charge or control of the property; or
2. 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.
B. 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 Newport Beach Municipal Code Section 10.59.070 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 fall 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 cost of the abatement by the City employees and private contractors will be assessed upon your property and such costs will constitute a lien upon the land until paid.
All persons having any objection to, or interest in said matters are hereby notified to submit any objections or comments to the City Manager within forty-eight (48) hours from receipt of this notice. At the conclusion of this forty-eight (48) hour period, without further notice and at your expense, the City may proceed with the abatement of the graffiti inscribed on your property.
C. Appeal.
1. Within forty-eight (48) hours of receipt of the notice, the owner or person occupying or controlling such property affected may appeal the order of abatement to the City Council of the City of Newport Beach. Appeals shall be filed with the City Clerk and shall be accompanied by a letter stating the reasons for the appeal and a deposit/fee as required by City Council resolution. The City Council shall designate a Hearing Officer to hear such appeals. An appeal shall be accompanied by a deposit/fee as required by City Council resolution.
2. Within fifteen (15) days of receipt of the appeal application, the City Clerk shall notify the applicant of the date, time and location at which the Hearing Officer shall hear the appeal. The Hearing Officer shall hear and pass upon the appeal within fifteen (15) days. The decision of the Hearing Officer thereupon shall be final as to the City but subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5.
D. 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 Hearing Officer declaring the graffiti to be a public nuisance, the City 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.
E. Assessment of Costs.
1. The person(s) who abate the nuisance under the provision of this chapter shall keep an account of the cost of abatement. Such person(s) shall submit to the Hearing Officer for confirmation, an itemized report showing such costs. The Hearing Officer may modify the report if it is deemed necessary and shall then confirm the report by motion or resolution.
2. Pursuant to California Government Code Section 38773.5, the total cost of abatement, including all administrative costs, shall constitute a special assessment against that parcel. After the assessment is made and confirmed, it shall constitute a lien on the parcel.
3. Such special assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same penalties and the same procedures and sale in case of delinquency as provided for ordinary municipal taxes. (Ord. 2023-22 § 484, 2023; Ord. 93-14 § 1 (part), 1993)
10.59.100 Reward.
Pursuant to California Government Code Section 53069.5, the City may pay a reward, the amount to be established by City Council resolution, to any person who furnishes information leading to the identification and apprehension of any persons convicted of willfully applying graffiti to any surface located on private or public property.
In the event of multiple contributors of information, the reward shall be divided by the City in the manner it shall deem appropriate. For the purpose 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.
No Law Enforcement Officer, municipal officer, or official employee of the City shall be eligible for a reward made pursuant to this section. (Ord. 2023-22 § 485, 2023; Ord. 93-14 § 1 (part), 1993)
10.59.110 Penalties for Violations.
Any violation of this chapter shall be a misdemeanor offense punishable by either six months in jail, a one thousand dollar ($1,000.00) fine, or both such fine and imprisonment. (Ord. 93-14 § 1 (part), 1993)
10.59.120 Community Service Option.
As an alternative to paying the fine for a misdemeanor or to paying any costs assessed pursuant to the above sections, any person may perform community service clean up activities under the supervision of the City Manager. The number of hours of community service to be performed shall be determined by dividing the dollar amounts of fines and/or costs by five dollars ($5.00). (Ord. 93-14 § 1 (part), 1993)
10.59.130 Recovery of Costs.
A. Any person convicted of applying graffiti to any wall, structure or other permanent surface located on public or privately owned real property within the City shall be liable to the City for the cost of removing that same graffiti. If such person is an unemancipated minor, his or her parent or guardian shall also be liable to the City for the cost of removal of that same graffiti.
B. Any person convicted of applying graffiti to any wall, structure or other permanent surface located on public or privately owned real property within the City shall be liable to the City for the amount of any reward paid by the City pursuant to this chapter. If such person is an unemancipated minor, his or her parent or guardian shall also be liable for the amount of the reward.
C. Any person owing money to the City under subsection (A) or (B) above shall be liable in any action brought in the name of the City for the recovery of such amount, including reasonable attorney’s fees. (Ord. 93-14 § 1 (part), 1993)