Chapter 5-26
SPRAY PAINT AND GRAFFITI

Sections:

Article 1. Actions and Implements Prohibited

5-26-100    Purpose.

5-26-105    Definitions.

5-26-110    Graffiti prohibited.

5-26-115    Definitions.

5-26-120    Possession of aerosol spray paint cans by minors prohibited.

5-26-125    Sale of aerosol spray paint cans to minors prohibited.

5-26-130    Signs to be placed in retail establishment.

5-26-135    Storage and display of spray paint containers and marker pens.

5-26-140    Penalties.

5-26-145    Declared nuisance.

5-26-150    Council to determine costs.

5-26-155    Authority to remove.

5-26-160    Graffiti removal.

5-26-165    Prior consent for removal.

5-26-170    Notice of intention to abate and remove graffiti – Form.

5-26-175    Public hearing and appeal.

5-26-180    Treble damages.

Article 1. Actions and Implements Prohibited

5-26-100 Purpose.

Aerosol spray paint cans are currently being used as a means of defacing public and private property, resulting in the creation of unsightly graffiti. Graffiti reduces property values, encourages blight and frequently becomes a forum for gang-related potentially criminal activities. In order to assist law enforcement personnel in dealing with this growing problem, the City Council deems it necessary and appropriate to regulate the use and possession of aerosol spray paint cans and the applications of graffiti, and to provide for the abatement of graffiti.

5-26-105 Definitions.

“Graffiti” means the intentional spraying of paint or marking of paint, ink, chalk, dye or other similar substances upon private or public property without permission of the owner of the property.

5-26-110 Graffiti prohibited.

It is unlawful for any person to intentionally place graffiti upon any private or public property. A mistake as to the private property owner’s identity shall not be a defense to a violation of this Section.

5-26-115 Definitions.

(A) “Spray paint containers” or “spray paint cans” or “spray cans” means any container, regardless of the material from which it is made, that is made for or adapted to the purpose of spraying paint or any other solution capable of defacing property which cannot be removed with water after it dries.

(B) “Marker pens” means any indelible marker or similar implement with a writing tip exceeding four (4) millimeters in width that contains a solution which cannot be removed with water after it dries.

5-26-120 Possession of aerosol spray paint cans by minors prohibited.

(A) It is unlawful for any minor person under the age of eighteen (18) to have in their possession any aerosol spray can containing any substance commonly known as paint, while upon any public highway, street, alleyway, park, playground, swimming pool or other public place, whether such minor is or is not in any automobile, vehicle or other conveyance.

(B) This Section shall not apply if such minor is in possession of an aerosol spray can in order to perform a task as directed by the minor’s parent, guardian, instructor or employer, and if that task would not be a violation of this Chapter if conducted by an adult.

5-26-125 Sale of aerosol spray paint cans to minors prohibited.

It is unlawful for any person to sell to a minor any aerosol spray can containing any substance commonly known as paint. This Section shall not apply to the furnishing of six (6) ounces or less of an aerosol container of paint for the minor’s use or possession under the supervision of the minor’s parent, guardian, instructor or employer.

5-26-130 Signs to be placed in retail establishment.

A sign not smaller than eight and one-half by eleven inches (8-1/2″ x 11″) shall be prominently displayed in the proximity of the merchandise in all retail establishments which offer for sale to the public paint in aerosol spray cans. These signs shall read as follows:

Possession by or sale to a minor of an aerosol spray can containing paint is unlawful. California Penal Codes 594.1, San Juan Bautista Municipal Code Sections 5-26-120 and 5-26-125.

5-26-135 Storage and display of spray paint containers and marker pens.

(A) It shall be unlawful for any person who owns, conducts, operates or manages a commercial, retail or wholesale establishment where spray paint containers or marker pens are sold to store or display, or cause to be stored or displayed, such spray paint containers and marker pens in an area that is accessible to the public without employee assistance in the regular course of business pending legal sale or other disposition.

(B) Nothing herein shall preclude the storage or display of spray paint containers and marker pens in an area viewable by the public so long as such items are not accessible to the public without employee assistance.

(C) Any violation of this Section shall constitute an infraction.

5-26-140 Penalties.

Violation of this Chapter, excepting SJBMC 5-26-135, may be charged as either an infraction or a misdemeanor in the discretion of the City Attorney.

5-26-145 Declared nuisance.

For the reasons stated in SJBMC 5-26-100, the City Council finds and declares that the presence of graffiti on private or public property constitutes a public nuisance which may be abated as such in accordance with provisions of this Chapter, or any other applicable provision of law.

5-26-150 Council to determine costs.

The City Council shall from time to time determine and fix an amount to be assessed as administrative costs excluding the actual cost of removal of the graffiti.

5-26-155 Authority to remove.

Upon discovering the existence of graffiti on private or public property within the City, the code enforcement officer shall have the authority to cause the abatement and removal thereof in accordance with the procedure prescribed in this Chapter.

5-26-160 Graffiti removal.

The City Manager or his designee shall determine the type of removal process, which may include, but is not limited to, painting out, washing of surface, sanding or fence plank replacement.

5-26-165 Prior consent for removal.

Private property owners may submit prior written consent authorizing the City to abate graffiti upon discovery.

5-26-170 Notice of intention to abate and remove graffiti – Form.

(A) If a prior written consent pursuant to SJBMC 5-26-165 has not been submitted to the City by the current owner of the real property shown on the current equalized assessment rolls, the City Manager or his designee shall cause a notice of intention to remove graffiti to be mailed by registered or certified mail to the owner of the real property upon which graffiti has been unlawfully applied. The notice shall advise the following:

(1) If consent to remove the graffiti is provided to the City by the owner, or by any person authorized by the owner, within ten (10) days of mailing the notice, the City shall remove the graffiti at not cost to the owner.

(2) If the owner objects to removal of the graffiti by the City and/or to the costs which shall be assessed to the owner the owner may request a hearing before the City Manager or his designee pursuant to SJBMC 5-26-165 by delivering to the City Manager or his designee, within ten (10) days of the mailing of the notice, a written request for a hearing setting forth the nature of the owner’s objections.

(3) If within ten (10) days of the mailing of the notice, the graffiti has not been removed and the City has not received from the owner either a consent to remove the graffiti or a written request for a public hearing, then the City shall be entitled to remove the graffiti and assess the costs of administration and removal to the property owner.

(B) The notice of intention to remove graffiti shall be in substantially the following form:

NOTICE OF INTENTION TO ABATE AND REMOVE GRAFFITI

___________
___________
___________

Re: Graffiti at (property address)

As owner shown on the last equalized assessment roll of the real property located at _______, you are hereby notified that the undersigned had determined pursuant to Section 5-26-145 of the San Juan Bautista Municipal Code that there exists upon said real property certain graffiti which constitutes a public nuisance.

The City of San Juan Bautista desires to remove the graffiti as quickly as possible. If within ten (10) days of the mailing of this notice you, or any person authorized by you, provides the City with written consent to remove the graffiti, the City shall remove the graffiti at no expense to you as the owner. If within ten (10) days of the mailing of this notice, the graffiti has not been removed and the City has not received from you written consent to remove the graffiti, the City shall determine the graffiti a public nuisance and assess the costs of administration and removal to you without a hearing.

If you object to the removal of the graffiti from your property by the City and/or to the costs which shall be assessed to you pursuant to the terms of this letter, you may request a hearing before the City Manager or his designee pursuant to Section 5-26-175 of the San Juan Bautista Municipal Code by delivering to the City Manager or his designee, within ten (10) days of the mailing of this notice, a written request for a hearing setting forth the nature of your objections.

You may appear in person at any hearing, or by any other responsible party or, in lieu thereof, you may present a sworn statement of the reasons you object to the removal of the graffiti from your property by the City and/or to the costs to be assessed. The sworn statement must be delivered to the City Manager or his designee before the time set for the hearing.

If you desire the City to remove the graffiti from your property at no expense to yourself, please provide written consent to the City on or before ________, 20___.

Notice mailed: ____________
(Date)

_________________________________
City Manager (City of San Juan Bautista)

5-26-175 Public hearing and appeal.

(A) If the City Manager or his designee receives within ten (10) days of the mailing of the notice a written request from the owner of the property for a hearing, then a public hearing shall be held by the City Manager or his designee on the objections made by the owner of the property.

(B) Following the hearing, the City Manager or his designee shall make written findings of fact showing whether graffiti tends to reduce the value of private property to promote blight and deterioration and be injurious to the health, safety and general welfare. Such written findings of fact shall be the basis for the decision of the City Manager or his designee.

(C) Appeal from any decision of the City Manager or his designee may be made in writing to the City Council within ten (10) calendar days from the date action is taken by the City Manager or his designee. Within the same ten (10) day period, the appellant shall pay a non-refundable fee set from time to time by resolution of the City Council.

5-26-180 Treble damages.

Upon entry of a second or subsequent civil criminal judgment within a two (2) year period finding that any person is responsible for the unlawful application of graffiti, a fine in the amount of three (3) times the cost of abatement shall be paid by the violator(s).

Legislative History: Ords. 94-4 (3/15/94), 94-10 (6/21/94).