Chapter 6.120 ABATEMENT OF GRAFFITI

It is the purpose and intent of the Rancho Cordova city council, through the adoption of this chapter, to establish a program for the abatement of graffiti, and to provide additional enforcement tools to protect the public from acts of vandalism and defacement, including the application of graffiti on public and private property, as well as on vehicles and other forms of personal property. Such acts are destructive to the rights and values of private property owners, as well as to the entire community. It is the further intent of the city council, through the adoption of this chapter, to provide notice to all of those who disregard the property rights of others that the city will strictly enforce the law and vigorously prosecute those persons engaging in the defacement of public and private property. The city council is authorized to enact the ordinance codified in this chapter pursuant to its police powers, as specified in Article 11, Section 7 of the California Constitution, Government Code Sections 53069.3, 53069.5, and 38771 through 38773.7, and Penal Code Section 594.5. This chapter is not intended to conflict with Penal Code Section 594 et seq., or any other state or federal law relating to graffiti. [Ord. 11-2012 § 2].

6.120.020 Definitions.

For the purposes of this chapter, the following words and phrases shall have the meanings respectively defined by this section:

A. “Abate” or “abatement” means to remove graffiti by such means, and in such manner, and to such an extent as the city manager or designee 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 any other substance capable of defacing property.

D. “City” means the city of Rancho Cordova and its authorized agents.

E. “City manager” means the city manager of the city of Rancho Cordova or his or her designee.

F. “Code” means the most current version of the City of Rancho Cordova Municipal Code.

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 or employee authorized by the city manager to enforce provisions of this chapter, including, but not limited to, those from the neighborhood 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. “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.

J. “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.

K. “Graffiti” means any 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.

L. “Graffiti-attracting surface” means any surface of any building, structure, tree, shrub, curb, vehicle, personal (public or private) or real property (public or private) which has been defaced with graffiti more than three times in any 12-month period.

M. “Graffiti implement” means an aerosol paint container, felt-tip marker, gum label, paint stick, 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.

N. “Hearing officer” means the city manager of the city of Rancho Cordova or his or her designee.

O. “Minor” means a person less than 18 years of age.

P. “Paint 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.

Q. “Property owner” means the owner(s) of record of real or personal property located within the city, or the person(s) having a right of present possession of the affected property, if other than the owner, including, without limitation, tenant(s), subtenant(s), lessee(s), sublessee(s), or assignee(s) with primary responsibility or control over the affected property, or with primary responsibility for maintenance and repair of the property, and shall include any authorized agent(s) of all such person(s).

R. “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. [Ord. 43-2013 § 4; Ord. 11-2012 § 2].

6.120.030 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 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 is a graffiti-attracting surface. [Ord. 11-2012 § 2].

6.120.040 Application of graffiti prohibited.

Any person who defaces, damages, or destroys real or personal property not his or her own with graffiti is subject to the remedies and penalties set forth in this chapter and Penal Code Sections 594, 640.5 and 640.6. [Ord. 11-2012 § 2].

6.120.050 Maintenance of graffiti prohibited.

It shall be unlawful and a misdemeanor for any person to permit any graffiti to be publicly visible from any real property, whether privately or publicly owned, a public street, sidewalk, alley, or other public right-of-way. [Ord. 11-2012 § 2].

6.120.060 Possession of graffiti implements by minors prohibited.

In accordance with subdivisions (e) and (f) of Penal Code Section 594.1, it shall be unlawful and a misdemeanor for any minor to have in his or her possession any etching cream or aerosol paint container for the purpose of defacing property while on any public highway, street, alley, or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance. [Ord. 11-2012 § 2].

6.120.070 Possession of graffiti implements prohibited in certain public places.

In accordance with subdivisions (d) and (f) of Penal Code Section 594.1, it is unlawful and a misdemeanor for any person to carry on his or her person and in plain view to the public any etching cream or aerosol paint container while in any posted public facility, park, playground, swimming pool, beach, or recreational area, other than a highway, street, alley, or way, unless he or she has first received valid authorization from the city or other governmental entity which has jurisdiction over the public area. As used in this section, “posted” means a sign placed in a reasonable location or locations stating it is a misdemeanor to possess etching cream or an aerosol paint container in that public facility, park, playground, swimming pool, beach, or recreational area without valid authorization. [Ord. 11-2012 § 2].

6.120.080 Display 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 in accordance with the provisions herein and state law.

B. It shall be unlawful and a misdemeanor for any person or business engaged in the commercial enterprise of selling, providing, loaning, or trading aerosol paint containers, etching creams, paint sticks and felt-tip markers to store or keep such items in an unsecured area. Any person or business engaged in the commercial enterprise of selling, providing, loaning or trading aerosol paint containers, etching creams, paint sticks and felt-tip markers shall store or keep such items in a locked area accessible only to the owners or employees of the commercial enterprise.

C. 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 aerosol paint container, etching cream, paint stick or felt-tip marker 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 or damages, arising from the use by any person of an aerosol paint container, etching cream, paint stick and/or felt-tip marker which was displayed or stored in violation of this section and has been found to be directly from the place of business. [Ord. 11-2012 § 2].

6.120.090 Abatement of nuisance.

The city council hereby declares that the public nuisance conditions listed in RCMC 6.120.030 are subject to abatement as set forth in RCMC 6.120.110 through 6.120.170. [Ord. 11-2012 § 2].

6.120.100 Alternate abatement procedures – Graffiti removal with city funds.

A. In addition to abatement of a graffiti nuisance in accordance with RCMC 6.120.090, pursuant to Government Code Section 53069.3, 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.

B. 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 to recover the costs of such abatement, including administrative costs and attorneys’ fees, pursuant to RCMC 6.120.170.

C. 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 the property owner agrees in writing to pay for the costs of repainting or repairing the more extensive area.

D. Prior to entering onto private property for the purpose of graffiti removal pursuant to this section, the city shall secure the written consent of the property owner, which shall contain a release of the city from liability for any and all damages related to the removal of graffiti from the property owner’s property pursuant to this section. The property owner may execute and file with the city a consent and release 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 property owner. [Ord. 11-2012 § 2].

6.120.110 Notice and order to abate graffiti nuisance.

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 RCMC 6.120.030, and determines that the city may need to establish the right to abate said nuisance, the city manager shall issue a “notice and order to abate graffiti nuisance” (hereinafter, “notice and order to abate”) to the property owner of the property on which the nuisance exists requiring the abatement of the nuisance within five business days of the date of service of the notice and order to abate, or within some other reasonable time in connection with a graffiti-attracting surface. [Ord. 11-2012 § 2].

6.120.120 Contents of notice and order to abate.

The notice and order to abate issued pursuant to this chapter shall be in the manner and method set forth in RCMC 16.18.503. [Ord. 11-2012 § 2].

6.120.130 Service of notice and order to abate.

Any notice and order to abate shall be served upon the property owner in the manner and method set forth in RCMC 16.18.503(B) and (C). [Ord. 11-2012 § 2].

6.120.140 Method of abatement.

Where graffiti is being abated by the repainting of the entire surface area upon 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. Spot or patch painting of only the specific area where the graffiti is located shall be prohibited unless authorized by the city manager, or his or her designee. As it relates to a graffiti-attracting surface, a notice and order 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 property owner:

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 Sacramento 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 city manager or his/her designee, to the surface or structure;

C. Installation of landscaping as approved by the city manager or his/her designee, so as to screen or provide a barrier to the surface or structure; and

D. Installation of additional lighting, as approved by the city manager or his/her designee. [Ord. 8-2017 § 1; Ord. 11-2012 § 2].

6.120.150 Appeal hearing request and procedure.

A. A property owner receiving a notice and order to abate may contest said notice and order to abate in the manner provided in the notice and order to abate and pursuant to the procedures set forth in RCMC 16.18.504 through 16.18.511.

B. Failure of the city clerk to receive a timely request for an appeal constitutes a waiver of the right to contest a notice and order to abate. In this event, the notice and order is final and binding, and the city shall have the right to abate the graffiti nuisance and recover the costs associated with such abatement as provided in RCMC 6.120.170.

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 to recover costs in a different manner, including, without limitation, by court orders arising from the city’s exercise of its criminal or civil remedies. [Ord. 11-2012 § 2].

6.120.160 Notice of decision of appeal.

A. Within a reasonable time, not to exceed 10 calendar days following the conclusion of the appeal hearing, the hearing officer shall issue a decision in the manner and method set forth in RCMC 16.18.512.

B. 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 RCMC 16.18.512 or as proscribed by law.

C. A copy of the decision shall be served in the manner and method set forth in RCMC 16.18.513. [Ord. 11-2012 § 2].

6.120.170 Recovery of abatement costs.

A. The city shall keep an itemized record of the graffiti abatement and related administrative costs and expenses, including attorneys’ fees, incurred by the city with the respect to the abatement of the property. Such costs shall be confirmed by the city council as provided herein, and the full amount of these expenses shall be due and payable from the property owner or from the offender, or, if the offender is a minor, the parent or guardian having custody and control of the minor in accordance with RCMC 6.120.190.

B. The city clerk shall serve a copy of the itemized report upon the property owner, the offender, or the parent or guardian having custody and control of an offender that is a minor, which shall be accompanied by a notice of the time and place when a hearing will be conducted by the city council to consider confirmation of the report. The report and notice shall be served upon the property owner, the offender, or the parent or guardian having custody and control of an offender that is a minor as applicable, at least 10 days prior to the scheduled date of the hearing.

C. At the time and place fixed in the notice of the confirmation hearing, the city council shall consider the report of abatement costs submitted by the city manager. The city council will hear any protests or objections thereto by the property owner, the offender, or the parent or guardian having custody and control of an offender that is a minor as applicable. The hearing may be continued from time to time without further written notice.

D. Upon the conclusion of the hearing, the city council shall make such revisions, corrections, or modifications to the report as may be necessary or appropriate, based upon the evidence presented at the hearing, and shall thereafter confirm the report as submitted or modified by issuing an order for payment of the abatement costs within 30 days. The decision of the city council shall be final and conclusive.

E. If payment or payment arrangements with the city’s finance department are not made within 30 days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of $150.00, plus interest on the unpaid amount plus penalty, which interest shall accrue at the rate of one and one-half percent per month until paid.

F. In the event the expense of abatement has not been paid within 30 days from the date of issuing an accounting and demand for payment, and payment arrangements have not been made with the city’s finance department, as required in subsection (E) of this section, the amount unpaid including any penalty and interest therein shall constitute a lien pursuant to Government Code Sections 38773, 38773.1, and their successors, against the property of the property owner. Prior to recording a notice of lien, the city shall provide notice to the property owner pursuant to Government Code Section 38773.1. However, if the city determines that the expense of abatement shall be recovered from the offender, or, if the offender is a minor, the parent or guardian having custody and control of the minor, then the amount unpaid, including any penalty and interest therein, shall constitute a lien pursuant to Government Code Sections 38772 and 38773.2 against the property of the offender, or of the parent or guardian having custody and control of the minor, if the offender is a minor. Prior to recording a notice of lien, the city shall provide notice pursuant to Government Code Section 38773.2. Any such lien imposed by this section not paid by June 30th of each year shall, upon adoption of a resolution by the city council, be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

G. Alternatively, pursuant to Government Code Section 38773.5, the expense of abatement may constitute a special assessment against a parcel of land owned by the property owner. The assessment shall be collected as provided for in Government Code Section 38773.5 and its successors. However, if the city determines that the expense of abatement shall be recovered from the offender, or, if the offender is a minor, the parent or guardian having custody and control of the minor, the expense of abatement may constitute a special assessment against a parcel of land owned by the offender or the parent or guardian having custody and control of the offender, if the offender is a minor. In such event, the assessment shall be collected as provided for in Government Code Section 38773.6 and its successors.

H. In addition to any other remedy provided herein or available at law, expense of abatement pursuant to Government Code Sections 38772, 38773, 38773.1, 38773.2, 38773.5, and 38773.6 shall constitute a personal obligation against the property owner, or the offender, or if the offender is a minor, the parent or guardian having custody and control of the minor. [Ord. 11-2012 § 2].

6.120.180 Summary abatement of graffiti.

A. The city council finds that proliferation of graffiti, especially gang-related graffiti, presents an imminent danger to the public safety and welfare and constitutes a public nuisance. Law enforcement officials and other experts agree that immediate removal of gang-related graffiti is necessary to reduce the risk of violent and other criminal activities associated with gangs and gang territories. The presence of graffiti, which is not abated, immediately encourages the creation of additional graffiti, resulting in neighborhood blight and increased costs of abatement.

B. Notwithstanding any other provision of this chapter, the enforcement officer is hereby authorized to summarily abate gang-related graffiti. The abatement may be undertaken by staff or by outside contractors. For purposes of this section, “gang-related graffiti” shall be defined as graffiti that is placed on private or public property by person(s) reasonably believed by the police department or neighborhood services department to be a member of, or affiliated with, a criminal street gang, as that term is defined in Penal Code Section 186.22.

C. The costs of summary abatement of gang-related graffiti and related administrative costs and expenses, including attorneys’ fees, incurred by the city may be recovered as provided in RCMC 6.120.170. [Ord. 11-2012 § 2].

6.120.190 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 parents 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 of the issuance of a demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of $150.00, plus interest on the unpaid amount, which interest shall accrue at the rate of one and one-half percent per month until paid. [Ord. 11-2012 § 2].

6.120.200 Administrative fines.

A. In addition to any other remedy provided in this chapter or in state law, whenever an enforcement officer determines that a violation of this chapter has occurred, the enforcement officer has the authority to issue an administrative citation to the person responsible for the violation. The administrative fine levied for a violation of this chapter shall be in the following amounts:

1. For the first offense by a fine of $250.00; or

2. For a second offense by a fine of $500.00; or

3. For a third or any subsequent offense by a fine of $1,000.

Administrative citations issued pursuant to this section shall be in accordance with the procedures provided in RCMC 16.18.205(F).

B. Any person served with an administrative citation pursuant to this section may request to perform community service in lieu of payment of an administrative fine. The city shall have the sole discretion to determine whether community service may be an appropriate remedy for a particular situation, in lieu of requiring payment of the administrative fine. [Ord. 11-2012 § 2].

6.120.210 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 planning director 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 in 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 Sacramento 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. 11-2012 § 2].

6.120.220 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. 11-2012 § 2].

6.120.230 Recoupment of city costs by county probation officer.

A. Pursuant to California Welfare and Institutions Code Section 742.14, the city elects, at its discretion, to have the probation officer of Sacramento County recoup for it, through juvenile court proceedings in accordance with California Welfare and Institutions Code Section 742.16, its costs associated with defacement by minors of its property and the property of others by graffiti or other inscribed material.

B. For purposes of this section only, the city council makes the following cost findings, the specific dollar amounts of which shall be set by council resolution:

1. The city’s average costs per unit of measure of identifying and apprehending a person subsequently convicted or otherwise found by a court proceeding to have committed an act prohibited by California Penal Code Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7 are as follows: police services rendered to the city based upon the estimated value of hours spent by police department personnel and miles driven by patrol vehicles (including fractions thereof).

2. The city’s average costs per unit of measure of removing graffiti or other inscribed material, or of repairing or replacing property defaced with graffiti or other inscribed material pursuant to RCMC 6.120.100 that cannot be removed cost effectively, may include any of the following: cost per inspection by the enforcement officer; cost per photo documenting graffiti damage; cost per square inch cost of labor and materials used to remove graffiti damage. [Ord. 11-2012 § 2].

6.120.240 Penalties.

A. Any violation of this chapter shall constitute a misdemeanor offense.

B. Whenever deemed appropriate, it is the city’s intent to petition a sentencing court to impose additional penalties or conditions, including community service, 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, and the laws of the United States. [Ord. 11-2012 § 2].