Chapter 8.13
ABATEMENT OF GRAFFITI OR OTHER INSCRIBED MATERIAL
Sections:
8.13.030 Scope of application.
8.13.070 Removal of graffiti or other inscribed material with owner’s consent.
8.13.090 Manner of giving notice.
8.13.100 Hearing of appeal on notice to abate.
8.13.120 Summary abatement of immediate dangers.
8.13.130 Administrative fines for violations of chapter.
8.13.140 Notice to pay costs of abatement and administrative fines.
8.13.150 Imposition of special assessment or nuisance abatement lien to recover costs of abatement.
8.13.160 Special assessment and nuisance abatement liens – Cost report.
8.13.170 Special assessment and nuisance abatement liens – Notice of hearing.
8.13.180 Special assessment and nuisance abatement liens – Cost hearing.
8.13.200 Treble costs of abatement.
8.13.220 Chapter not exclusive.
Prior legislation: Ord. 1494.
8.13.010 Purpose and intent.
The City Council hereby finds and determines that the abatement of graffiti or other inscribed material within the City is a matter of local concern and serves an important public purpose, i.e., to protect the public health, safety and welfare. It is the intent of this chapter to provide the City with several mechanisms for such purpose, including a mechanism to impose administrative fines and to collect the costs of abatement. Nothing contained in this chapter shall impose any responsibility on the part of the City to undertake the abatement of a nuisance arising between private neighboring properties or other private nuisance.
(Ord. 1907, Amended, 01/24/2017)
8.13.020 Definitions.
As used in this chapter, the following words and phrases shall have the following meanings unless the context shall indicate another meaning or intent. Whenever any reference is made herein to any local, state, or federal law, the reference includes any subsequent amendment or superseding provision.
“Abate” means to repair, replace, remove, destroy or otherwise remedy the act or condition in question by such means and in such manner and to such an extent as the enforcement officer in his or her sole discretion determines is necessary in the interest of the public health, safety and welfare.
“City” means the City of Vacaville.
“City Manager” means the City Manager of the City of Vacaville or designee.
“Costs of abatement” means the City’s enforcement costs, including, but not limited to, the City’s actual expenses and costs in responding to the violation(s); personnel costs, direct and indirect, in enforcing this chapter; reasonable attorneys’ fees; preparing notices and administrative citations; participating in or conducting any hearings subject to this chapter; and collection costs by use of all available legal means, including, but not limited to, means available for the collection of judgments, special assessments and liens, and actions for recovery of money.
“Enforcement officer” means the Division of Code Enforcement.
“Graffiti or other inscribed material” includes any unauthorized inscription, word, figure, mark or design that is written, marked, etched, scratched, drawn, sprayed, painted, pasted or otherwise affixed to or on any real or personal property.
“Guardian” means a minor’s legal guardian who has custody and control of the minor.
“Hearing Examiner” means the City Manager or designee.
“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 California 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 California Penal Code.
“Owner” and “property owner” are used interchangeably and mean the owner(s) of record of real property as shown on the latest equalized tax assessment roll of Solano County or as otherwise known to the City by virtue of more recent and reliable information.
“Parent” means a minor’s parent(s) who have custody and control of the minor.
“Person” means individuals, corporations, associations, partnerships, limited liability companies, trustees, lessees, agents and assignees.
“Real property,” “property” and “premises” are used interchangeably and mean all real property, including, but not limited to, front yards, side yards, rear yards, driveways, walkways, and adjacent streets and sidewalks, and shall include any building or other structure located on such property.
“Responsible person” means any agent, tenant, occupant, or other person having charge or control of any real property that is subject to this chapter, or any other person who violates the provisions of this chapter.
“Tenant” or “occupant” means that person utilizing, residing at, or occupying the real property in question.
(Ord. 1907, Amended, 01/24/2017)
8.13.030 Scope of application.
The provisions of this chapter shall apply to all residential, commercial, industrial, improved, or unimproved real property throughout the City, whether owner occupied or a rental property.
(Ord. 1907, Amended, 01/24/2017)
8.13.040 Responsibility.
Every owner or other responsible person within the City is required to manage their property and control the environment thereon in a manner so as not to violate the provisions of this chapter. The owner or other responsible person shall be liable for violations of this chapter, regardless of any contract or agreement with any third party regarding the property.
(Ord. 1907, Amended, 01/24/2017)
8.13.050 Authority.
The enforcement officer shall be responsible for administering and enforcing the provisions of this chapter. The enforcement officer shall have the authority to designate employees as enforcement officers to assist with enforcement responsibilities.
(Ord. 1907, Amended, 01/24/2017)
8.13.060 Public nuisance.
All graffiti or other inscribed material is declared to be a public nuisance and may be abated in accordance with this chapter.
(Ord. 1907, Amended, 01/24/2017)
8.13.070 Removal of graffiti or other inscribed material with owner’s consent.
A. The enforcement officer may, within his or her sole discretion, authorize the use of City funds or resources to remove any or all graffiti or other inscribed material when the enforcement officer finds that the owner did not place or authorize the placement of the graffiti or other inscribed material on the real property in question. Prior to the removal of the graffiti or other inscribed material, the owner shall sign a right of entry and waiver of liability in a format that is approved as to form by the City Attorney.
B. Such removal may be accomplished through whatever means deemed appropriate by the enforcement officer, including, but not limited to, the use of City employees, private contractors, or volunteers.
C. The authority granted by this section shall pertain only to the removal of the graffiti or other inscribed material, and not to the painting or repair of a more extensive area of the building, structure or other facility.
(Ord. 1907, Amended, 01/24/2017)
8.13.080 Notice to abate.
A. In addition to all other legal remedies, the enforcement officer may issue a notice to abate a violation of this chapter. The notice shall be substantially in the following form:
NOTICE TO ABATE VIOLATION(S) OF THE VACAVILLE MUNICIPAL CODE
(Name and address of person notified)
You are hereby notified that you are responsible for the following violation(s) of the Vacaville Municipal Code:
You are hereby notified to abate the violations(s) within _____ days of the date of this notice. If you fail to abate the violations(s) within such time period the costs of abatement, including but not limited to attorneys’ fees, may be charged to you as a civil debt and/or made a lien or special assessment. You may also be subject to administrative fines for each day that you allow the violation(s) to continue.
Abatement is to be accomplished in the following manner:
You may appeal this notice by filing a written request for appeal hearing with the city department listed below, no later than 10 days from the date of the mailing of this notice. Failure to appeal this notice within such 10 day time period will constitute a waiver of all rights to an administrative hearing and will be a final determination of the matter.
Dated: ____________________
By:_______________________
Department:________________
B. In the event the owner or other responsible person fails to abate the violation within the time provided in the notice to abate, the enforcement officer may file in the office of the County Recorder a notice of pending nuisance abatement proceeding, describing the property and certifying that the property is being maintained as a public nuisance. The manner of giving notice of such filing shall be provided in the same manner as a notice to abate.
(Ord. 1907, Amended, 01/24/2017)
8.13.090 Manner of giving notice.
A. The notice to abate shall be served upon the property owner and any other responsible person, and the holder of any other estate or legal interest of record. The notice may be personally delivered or sent by first class mail and posted conspicuously on or in front of the property. If service is by mail, service shall be deemed completed at the time of deposit into the United States mail. The failure to serve any person required herein to be served shall not invalidate any proceedings under this chapter as to any other person duly served.
B. Any duly issued notice shall be conclusively deemed to be adequate notice, and the failure of any person to see, read, understand, or otherwise receive the notice shall not invalidate any of the proceedings under this chapter.
(Ord. 1907, Amended, 01/24/2017)
8.13.100 Hearing of appeal on notice to abate.
A. The City shall have the burden of establishing by a preponderance of the evidence a violation of this chapter. The Hearing Examiner shall hear testimony offered on behalf of the City and rebuttal testimony offered on behalf of the owner or other responsible person. The failure to appear by the owner or other responsible person shall be deemed a final adjudication of the notice to abate as to such person.
B. The decision of the Hearing Examiner shall be issued in writing within 10 days of the conclusion of the hearing and shall be personally delivered or sent to the parties by first class mail. In the event the Hearing Examiner upholds the notice to abate, the decision shall inform the owner or other responsible person that he or she may seek review of the decision within 90 days in accordance with Section 1094.6 of the California Code of Civil Procedure.
C. The Hearing Examiner does not have the authority to order the owner to evict a tenant or any other person who has a possessory or legal interest in the property.
(Ord. 1907, Amended, 01/24/2017)
8.13.110 Abatement by City.
A. Upon the abatement by the City of a violation of this chapter, all the costs of abatement shall constitute a civil debt owing to the City jointly and severally by the owner or other responsible person. The debt shall be collectible in the same manner as any other civil debt owing to the City.
B. If the debt is not paid upon demand, then a special assessment or lien against the property may be applied in accordance with this chapter, or in accordance with applicable state law, including, but not limited to, Sections 38773.1 and 38773.5 of the California Government Code.
C. It is unlawful for any person to interfere, hinder or refuse to allow the City to lawfully enter upon private property for the purpose of abating the act or condition.
(Ord. 1907, Amended, 01/24/2017)
8.13.120 Summary abatement of immediate dangers.
Whenever any violation causes or constitutes or reasonably appears to cause or constitute an imminent or immediate danger to the public health, safety and welfare (e.g., gang related graffiti or other inscribed material which creates an imminent danger of retaliation or violence), the enforcement officer shall have the authority to summarily abate the same, and the owner or other responsible person shall be liable for the City’s costs of abatement.
(Ord. 1907, Amended, 01/24/2017)
8.13.130 Administrative fines for violations of chapter.
A violation of this chapter may be punishable as an infraction or misdemeanor, within the discretion of the enforcement officer. The fines shall be levied as follows:
A. Infractions. Except as provided in Subsection B of this section, an infraction is punishable by:
1. A fine not exceeding one hundred dollars for the first violation;
2. A fine not exceeding two hundred dollars for the second violation within any consecutive 12-month period; and
3. A fine not exceeding five hundred dollars for the third or subsequent violation within any consecutive 12-month period.
B. An infraction committed in violation of the City’s building and safety codes is punishable by:
1. A fine not exceeding one hundred dollars for the first violation;
2. A fine not exceeding five hundred dollars for the second violation within any consecutive 12-month period; and
3. A fine not exceeding one thousand dollars for the third or subsequent violation within any consecutive 12-month period.
C. Misdemeanors. A misdemeanor is punishable by a fine not exceeding one thousand dollars, imprisonment, or both.
D. The administrative fines shall constitute a civil debt owing to the City jointly and severally by the owner or other responsible person. The debt shall be collectible in the same manner as any other civil debt owing to the City.
E. Each day or portion thereof that the provisions of this chapter are violated shall be deemed as a separate offense.
(Ord. 1907, Amended, 01/24/2017)
8.13.140 Notice to pay costs of abatement and administrative fines.
A. In the event the owner or other responsible person fails to abate the violation within the time provided in the notice to abate, the enforcement officer may provide such person with a notice to pay the costs of abatement and administrative fines. The notice shall be substantially in the following form:
NOTICE TO PAY COSTS OF ABATEMENT AND ADMINISTRATIVE FINES
(Name and address of person notified)
On _______ you were notified that you were responsible for the following violation(s) of the Vacaville Municipal Code:
You failed to abate the violation(s) within the time period provided in the notice.
You are hereby assessed the following costs of abatement, which may be charged to you as a civil debt and/or made a lien or special assessment:
You are hereby further assessed the following administrative fines:
The foregoing costs of abatement and administrative fines are due and payable by you no later than 10 days from the date of this notice. If you fail to pay the foregoing amounts within the 10 day time period, a 10% late payment fee will additionally be assessed against you.
You may appeal this notice by filing a written request for appeal hearing with the city department listed below, no later than 10 days from the date of the mailing of this notice. Failure to appeal this notice within such 10 day time period will constitute a waiver of all rights to an administrative hearing and will be a final determination of the matter.
Dated: ____________________
By:_______________________
Department:________________
B. The giving of notice, the right to an administrative hearing and the conduct of the hearing shall be provided in the same manner as a notice to abate. In the event the Hearing Examiner upholds the notice to pay, the decision shall inform the owner or other responsible person that he or she may seek review of the decision within 20 days in accordance with Section 53069.4 of the California Government Code.
(Ord. 1907, Amended, 01/24/2017)
8.13.150 Imposition of special assessment or nuisance abatement lien to recover costs of abatement.
When the costs of abatement are not paid within 10 days as required by the notice to pay or order of the Hearing Examiner, in addition to all other remedies available to the City, the City may:
A. Special Assessment. Impose the costs of abatement as a special assessment against the real property pursuant to Section 38773.5 of the California Government Code, following confirmation of the assessment amount by the City Council. Thereafter said assessment may be collected at the same time and in the same manner as ordinary real property taxes are collected and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary real property taxes. Pursuant to Section 38773.5 of the California Government Code, notice shall be given to the record owner prior to the recordation of the assessment by certified mail, if the owner’s identity can be determined from the County Assessor’s or County Recorder’s records, and shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments. Subject to the requirements of Section 3691 of the California Revenue and Taxation Code, the City shall have the right to conduct a sale of vacant residential developed property for which the payment of the assessment is delinquent; or
B. Lien. Impose the costs of abatement as a lien against the real property pursuant to Section 38773.2 of the California Government Code, following confirmation of the lien amount by the City Council. Thereafter said lien shall have the force, effect, and priority of a judgment lien. Pursuant to Section 38773.2 of the California Government Code, notice shall be given to the record owner prior to the recordation of the lien in the same manner as summons in a civil action pursuant to Section 415.10 et seq. of the California Code of Civil Procedure. If the owner cannot be located after a diligent search, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in a newspaper of general circulation in Solano County. A nuisance abatement lien authorized by this section shall specify the amount of the lien, that the lien is being imposed in the name of the City, the date of the notice to abate, 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 record owner of the parcel. The proposed lien shall be confirmed by resolution of the City Council in the same manner as a special assessment.
(Ord. 1907, Amended, 01/24/2017)
8.13.160 Special assessment and nuisance abatement liens – Cost report.
The costs of abatement for each separate lot or parcel of land shall be reported to the City Council for a cost hearing pursuant to this chapter. Such report shall refer to each separate lot or parcel of land by description that is sufficient for reasonable and ready identification of the property, together with the costs of abatement proposed to be assessed against it.
(Ord. 1907, Amended, 01/24/2017)
8.13.170 Special assessment and nuisance abatement liens – Notice of hearing.
Pursuant to Section 54988 of the California Government Code, the record owner shall be provided by certified mail with a notice of hearing at least 45 days prior to the hearing. The notice of hearing shall be in substantially the following form:
NOTICE OF HEARING ON SPECIAL ASSESSMENT/NUISANCE ABATEMENT LIEN
NOTICE IS HEREBY GIVEN that the City of Vacaville has abated a nuisance from the real property owned by you, which real property is described as follows: (insert description of real property sufficient for reasonable and ready identification)
The costs of abatement proposed to be assessed against said property is $______.
FURTHER NOTICE IS HEREBY GIVEN that on _______________, 20__, at ___ p.m., in the council chambers of the city hall of the City of Vacaville, located at 650 Merchant Street, Solano County, California, the cost report for the proposed assessment/nuisance abatement lien will be presented to the city council for consideration, correction and confirmation and that at said time and place any and all persons interested in or having any objections to said report may appear and be heard. The failure to make any objection to said report shall be deemed a waiver of the same.
FURTHER NOTICE IS HEREBY GIVEN that the real property may be sold after three years by the tax collector for unpaid delinquent assessments.
Dated: ___________________________
City of Vacaville
(Ord. 1907, Amended, 01/24/2017)
8.13.180 Special assessment and nuisance abatement liens – Cost hearing.
At the time and place fixed for receiving and considering the report, the City Council shall hear the same together with any protests or objections which may be raised by any interested person. Upon such hearing, the City Council shall make such corrections or modifications to the cost report which it may deem to be excessive or otherwise incorrect after which such costs shall be confirmed by resolution of the City Council and the amount thereof shall be deemed to be final and conclusive.
(Ord. 1907, Amended, 01/24/2017)
8.13.190 Recovery of costs of abatement against minor, parents or guardians of minor, or other person adjudicated to be liable.
A. The City shall be entitled to recover the costs of abatement from a minor, the parent or guardian of the minor, or other persons, as those terms are defined in this chapter. The costs of abatement shall constitute a civil debt owing to the City jointly and severally by the minor, the parent or guardian of the minor, or other persons, and shall be collectible in the same manner as any other civil debt owing to the City.
B. If the debt is not paid upon demand, then a special assessment or lien against the property of such minor, parent or guardian, or other persons, may be applied in accordance with this chapter, or in accordance with applicable state law, including, but not limited to, Sections 38773.2 and 38773.6 of the California Government Code.
(Ord. 1907, Amended, 01/24/2017)
8.13.200 Treble costs of abatement.
In addition to any other remedy provided in this chapter or available at law, upon the entry of a second or subsequent civil or criminal judgment within a two-year period finding a property owner is responsible for a condition that may be abated in accordance with this chapter, the court may order that person to pay treble the costs of abatement pursuant to Section 38773.7 of the California Government Code. This section shall also be applicable to a person described in paragraph (3) of subdivision (d) of Section 38772 of the California Government Code. This section does not apply to conditions abated pursuant to Section 17980 of the California Health and Safety Code.
(Ord. 1907, Amended, 01/24/2017)
8.13.210 Attorneys’ fees.
Pursuant to Section 38773.5 of the California Government Code, reasonable attorneys’ fees may be recovered by the prevailing party in any action, administrative proceeding, or special proceeding to abate a violation of this chapter, if the City elects, at the initiation of the proceeding, to seek recovery of its own attorneys’ fees.
(Ord. 1907, Amended, 01/24/2017)
8.13.220 Chapter not exclusive.
The procedures provided in this chapter shall be cumulative and in addition to any other procedure or procedures provided in ordinances of this City or by state or federal law. The use of one remedy shall not prevent or diminish the use of any other remedy.
(Ord. 1907, Amended, 01/24/2017)