Chapter 9.12
GRAFFITI
Sections:
9.12.040 Violation, penalties and civil liability of parents.
9.12.050 Abatement and enforcement.
9.12.060 Graffiti abatement—A condition to issuance of city permits and approvals.
9.12.070 Implements possession.
9.12.080 Furnishing to minors prohibited.
9.12.090 Possession of graffiti implements in designated public places.
9.12.100 Aerosol paint sales—Display regulations.
9.12.110 Vandalism and graffiti reward system fund.
9.12.010 Purpose and intent.
A. The city council of the city of San Jacinto finds graffiti on public or private property a blighting element which leads to depreciation of the value of property which has been targeted by such vandalism and depreciates the value of the adjacent and surrounding properties to the extent that graffiti creates a negative impact upon the entire city.
B. The city council finds and determines that graffiti is obnoxious and a public nuisance, and must be eliminated by means of prevention education, and abatement to avoid the detrimental impact of such graffiti on the city and its residents, and to prevent the further spread of graffiti.
C. The purpose and intent of the city council, through the adoption of this chapter, is to protect public and private property from acts of vandalism and defacement. It is the further intent of the city council, through the adoption of this chapter, to provide notice to all those who disregard the property rights of others, that the law enforcement agencies of the city will strictly enforce the law and vigorously prosecute those persons engaging in violations of this chapter. (Ord. 1086 § 1.4, 2002)
9.12.020 Definitions.
“Aerosol paint container” means any substance commonly known as paint, stain, dye or other pigmented substance which is or can be modified to contain pressure, or can be pressurized, in order to impel or propel any such substance.
“City” means the city of San Jacinto.
“Graffiti” means an unauthorized inscription, writing, pictograph, design or scribbling clearly visible from a public road, public right-of-way or other property that is freely open to the public which is marked, stretched, scratched, drawn, painted, pasted or otherwise affixed to or on any surface, regardless of the nature of the material of that structural component, to the extent the same was not authorized in advance by the owner thereof, or, despite advance authorization, is otherwise deemed by the city council to be a public nuisance. Graffiti shall not include material that may be easily and completely removed from the surface on which it has been written, inscribed, pasted, or otherwise placed.
“Graffiti implement” means any implement capable of marking a surface to create graffiti, including but not limited to aerosol paint containers, markers, etching devices, and gum labels.
“Gum label” means any material such as, but not limited to, decals, stickers, posters or labels which contain a substance commonly known as adhesive or glue, which cannot be removed from the surface in an intact condition and with minimal efforts.
“Marker” means any indelible or permanent marker, or similar implement containing any ink that is not water soluble.
“Owner” means any person owning property either public or private, as shown on the last equalized assessment role for the city, or the lessee, tenant or other person having control or possession of the property.
“Person” means any individual, and also includes any domestic or foreign corporation and an association, a syndicate, a joint-stock corporation, a partnership of any kind, a club, business or common-law trust, a society or an individual conducting any business in the city.
“Sale” means the transfer, in any manner or by any means whatsoever, of title to property for consideration or the serving, supplying or furnishing for a consideration of any property. (Ord. 06-25 § 4)
9.12.030 Graffiti prohibited.
A. No person shall place graffiti upon any public or privately owned tree, rock, or temporary or permanent structure including, but not limited to, buildings, walls, fences, poles and signs, flood control channels, concrete, paving, etc., located within the city.
B. No owner of any real property within the city shall permit or allow any graffiti to be placed upon or remain on any tree, rock or temporary or permanent structure located on such property.
C. Declaration of Nuisance. The city council hereby declares and finds graffiti to be a nuisance subject to abatement according to the provisions and procedures contained herein, in San Jacinto Municipal Code Chapter 8.44 and California Government Code Section 38773 et seq. (Ord. 1086 § 1.4, 2002)
9.12.040 Violation, penalties and civil liability of parents.
A. Criminal Penalties. Any violation of this chapter shall be prosecuted to the fullest extent possible under California Penal Code Section 594 and other applicable state statutes, which may include fines ranging from ten thousand dollars ($10,000) to fifty thousand dollars ($50,000).
B. Additional Penalties Available. The following additional penalties may be imposed against a person who violates any provision of this chapter:
1. Litter or graffiti cleanup pursuant to California Vehicle Code Section 42001.71 upon conviction of violation of California Vehicle Code Section 23111, 23112 or 23113(a);
2. Suspension or delay of issuance of a driver’s license pursuant to California Vehicle Code Section 13202.6 upon a graffiti-vandalism conviction;
3. Performance of community service, including graffiti removal service by a minor determined to be a ward of the court as a result of committing a vandalism-related offense in the city of San Jacinto, as provided in California Welfare and Institutions Code Section 727.5.
C. Misdemeanor and Felony Prosecution. Pursuant to California Penal Code Section 640.6, all acts of graffiti-vandalism occurring within the city shall be prosecuted as misdemeanors pursuant to the California Penal Code Section 594 et seq. or this chapter, except for acts of graffiti-vandalism punishable as felonies under state law, which the city intends shall be prosecuted as felonies.
D. Civil Liability of Parents. Pursuant to California Civil Code Section 1714.1 each parent or legal guardian of a minor shall be personally liable for any and all costs to any person or business in connection with the removal of graffiti caused by that parent’s or guardian’s minor child, and for all law enforcement costs, city staff costs, attorney’s fees and court costs incurred in connection with the civil prosecution of any claim for damages or reimbursement up to twenty-five thousand dollars ($25,000).
E. Violation. A violation of any of the provisions of this chapter shall constitute a nuisance as defined in San Jacinto Municipal Code Chapter 8.44 and may be abated by the city through the process and procedure set forth in Chapter 8.44 or through civil process by means of restraining order, preliminary or permanent injunction, or in any other manner provided by law or this code for the abatement of such nuisances.
F. Civil Penalties. Any person, firm or corporation who violates any provision or fails to comply with any requirement or provision of this chapter shall be liable for a civil penalty not to exceed one thousand dollars ($1,000) for each violation. Each day of such conduct is a separate and distinct violation. In determining the amount of the civil penalty, the court shall consider all relevant circumstances, including, but not limited to, the extent of the harm caused by the conduct constituting a violation, the nature and persistence of such conduct, the length of time over which the conduct occurred, the assets, liabilities and net worth of the person, whether corporate or individual, and any corrective action taken by the defendant. The civil penalty prescribed by this subsection shall be assessed and recovered and a civil action brought by the city attorney or by any member of the public in any court of competent jurisdiction. The civil penalty prescribed by this subsection may be sought in addition to, and not in lieu of, any other remedy, including, but not limited to, criminal remedies, injunctive relief, specific performance or any other remedy. In the event any such action is brought by a member of the public, any civil penalty awarded shall be awarded to and on behalf of the city or other person whose property is damaged. (Ord. 06-25 §§ 5, 6; Ord. 1086 § 1.4, 2002)
9.12.050 Abatement and enforcement.
A. Authorization to Use City Funds. Within the limits set forth in this section, city funds may be used to remove graffiti from publicly or privately owned trees, rocks and temporary or permanent structures located on property either publicly or privately owned within the city.
B. Limitations to Use of City Funds. The use of city funds as authorized in this section is limited to the following cases:
1. The city manager or the city manager’s designee must approve each proposed use of city funds for the removal of graffiti.
2. Except as specified below, the city shall obtain the written consent of the owner of the affected public or private structures prior to removal of graffiti. The consent form shall be in a form approved by the city and shall:
a. Authorize entry of city employees or contractors on the affected property to accomplish the removal of the material;
b. Assign to the city of San Jacinto any cause or causes of action which the owner may have against any person or persons who deface said property with graffiti; and
c. Hold the city, its officers, employees and contractors harmless from all liability arising out of the entry on the property or the work of removing the material.
3. City funds shall be used only to remove the graffiti itself and may not be used for painting or repairing a larger area not inscribed by graffiti.
4. In any instance where the owner of the affected property or structure caused, materially contributed to, or voluntarily consented to the placement of graffiti, the owner may be held financially responsible pursuant to subsection C of this section.
C. Right of Entry onto Private Property When Owner Refuses or Fails to Consent. Whenever the code enforcement officer determines that graffiti is so located on publicly or privately owned property within the city so as to constitute a nuisance under this chapter or San Jacinto Municipal Code Chapter 8.44, the code enforcement officer or his or her designee shall have the right to enter upon the property for purposes of removing or abating the graffiti without first providing the owner with a notice of violation as set forth in Section 8.44.070. However, prior to such entry, the code enforcement officer or his or her designee shall first seek consent from the owner or provide the owner with notice to correct the violation and an opportunity for a hearing as set forth in Section 8.44.130; provided, however, that notwithstanding any provision contained in Chapter 8.44 to the contrary, such notice may be provided to the owner by any reasonable method, including, without limitation, personal notice, telephonic notice, facsimile, or electronic mail. In addition, notwithstanding any provision contained in Chapter 8.44 to the contrary, the owner’s opportunity to abate the public nuisance shall not be less than forty-eight (48) hours.
If the city shall have requested consent from an owner to remove or abate graffiti and that owner shall have refused or failed to consent, or if the city provides notice pursuant to this section and the owner fails to remove or abate the graffiti within the time frame specified in the notice, the city may commence graffiti abatement and cost recovery proceedings for the removal of the graffiti pursuant to the Government Code Sections 38772 and 38773.2 (lien against minor, parents or “other person’s” property, as defined therein), 38773.6 (special assessment against the property of minor, parents or “other person’s” property, as defined therein), 38773.1 (lien against the property owner), or 38773.5 (special assessment against the property owner). (Ord. 05-21 § 1; Ord. 1086 § 1.4, 2002)
9.12.060 Graffiti abatement—A condition to issuance of city permits and approval.
A. Conditions on Encroachment Permits. Encroachment permits issued by the city may, among other items, be conditioned on (1) the permittee applying an anti-graffiti material to the encroaching object or structure of a type and nature which is acceptable to the city manager, or his or her designee; (2) the immediate removal by the permittee of any graffiti; (3) the right of the city to remove graffiti or to paint the encroaching object or structure; (4) the permittee providing the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object or structure containing graffiti.
B. Conditions on Discretionary Approvals.
1. In imposing conditions upon conditional use permits, variances, building permits or other similar land use entitlements or development or design applications, the city may impose graffiti removal requirements or any or all of the following conditions, or other similar or related conditions:
a. Use of Anti-Graffiti Material. Applicant may be required to apply an anti-graffiti material and provide a landscape design of a type and nature which is acceptable to the city manager or his or her designee, to such of the publicly viewable surfaces to be constructed on the site deemed by the city manager, or designee, to be likely to attract graffiti (“graffiti attracting surfaces”) as referenced herein in this section.
b. Right of Access to Remove Graffiti. Applicant shall grant to city, in writing, the right of entry over and access to such property, upon twenty-four (24) hours’ posted notice, by authorized city employees or agents, for the purpose of removing or painting over graffiti on graffiti attracting surfaces previously designated by the city manager, or designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land.
c. Supply City with Graffiti-Removal Material. Applicant, and any and all successors in interest, shall, for a period of years after approval, provide the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of designated graffiti attracting surfaces.
d. Owner to Immediately Remove Graffiti. Owners, developers or other persons applying for subdivision maps shall, as a part of any conditions, covenants and restrictions covenant, which covenant shall run with the land, in a form satisfactory to the city, that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees, rocks and structures thereon to the city’s satisfaction. (Ord. 1086 § 1.4, 2002)
9.12.070 Implements possession.
A. It is unlawful for a minor to have in his or her possession any graffiti implement, except for the minor’s use under the supervision of the minor’s parent, guardian, instructor or employer.
B. It is unlawful for any person to have in his or her possession any graffiti implement while upon any real or personal property of the city, other than public highways, streets, alleys or ways, except as may be authorized by the city.
C. It is unlawful for any person to have in his or her possession any graffiti implement while upon any public or private property, except as may be authorized by the owner. (Ord. 06-25 § 7 (part))
9.12.080 Furnishing to minors prohibited.
It is unlawful for any person, firm or corporation to sell, give, exchange or in any way furnish any graffiti implement to a minor. (Ord. 06-25 § 7 (part))
9.12.090 Possession of graffiti implements in designated public places.
No person shall have in his or her possession any graffiti implement while in a public park, next to a public monument, public art display, other public property, including, without limitation, any playground, swimming pool, or recreational facility, or while near an underpass, bridge abutment, storm drain, sound wall, or similar type of public infrastructure. (Ord. 06-25 § 7 (part))
9.12.100 Aerosol paint sales—Display regulations.
It is unlawful for any person, firm or corporation that offers to the public any graffiti implement for sale to fail to store or cause to be stored any graffiti implement in such a manner as to be accessible to the public without employee assistance. (Ord. 06-25 § 7 (part))
9.12.110 Vandalism and graffiti reward system fund.
A. City staff may establish a San Jacinto vandalism and graffiti reward system fund. All civil fines paid by violators of this chapter shall be placed in the fund. The fund may also receive monetary designations from citizens, businesses and other organizations. Unless otherwise directed by the city council, the city manager, or designee, shall direct the expenditure of monies in the fund, including, but not limited to, rewards pursuant to subsection B of this section.
B. The city may, from time to time, pay rewards in amounts established by the city council for information leading to the arrest and conviction or plea of guilty of any person for violation of California Penal Code Section 594 or 640.5, or any other applicable state statutes related to vandalism, including, but not limited to, graffiti.
C. No employee or official of the city shall be eligible for a reward pursuant to subsection B of this section.
D. Claims for rewards under subsection B of this section shall be in writing and filed with the city. Each claim shall specify the following information:
1. The date, location, and kind of property defaced with graffiti or vandalism;
2. The name of the person(s) who committed the defacement;
3. The circumstances under which the person making the claim has knowledge that the person(s) committed the defacement;
4. Documentary evidence, if any, indicating that the person(s) committed the defacement;
5. The name of the employee or official to which the person making the claim discussed the matter; and
6. That the person making the claim declares under penalty of perjury that the information in the claim is true and correct.
E. Payment of a reward pursuant to subsection B of this section shall only be made by the city after the arrest and conviction or plea of guilty by a person committing the graffiti for violation of California Penal Code Section 594, 640.5, or any other applicable state statutes related to vandalism, including, but not limited to, graffiti.
F. The person committing the graffiti shall be liable for the amount of any reward paid pursuant to subsection B of this section. If he or she is a minor, the parent or legal guardian of the minor shall be liable for the reward amount and other fines and costs as provided in this chapter. (Ord. 06-25 § 7 (part))