X. NUISANCES
Chapter 9.90
GRAFFITI ABATEMENT
Sections:
9.90.010 Purpose and definitions.
9.90.025 Retail sale requirements.
9.90.035 Conditions on encroachment permits.
9.90.040 Declaration of nuisance.
9.90.050 Removal of graffiti – General.
9.90.060 Removal of graffiti – Responsible adults.
9.90.070 Removal of graffiti – Public property.
9.90.080 Removal of graffiti – Private property owner.
9.90.090 Abatement if no removal.
9.90.140 Criminal enforcement.
9.90.010 Purpose and definitions.
The purpose of this chapter is to protect property within the city by providing a program for removal of graffiti from real and personal property and to provide regulations to prevent and control the spread of graffiti in the city.
It is the further intent of the city council, through this chapter, to provide notice to all those who disregard the property fights of others, that the law enforcement agencies of the city will strictly enforce the law and vigorously prosecute those persons violating this chapter.
For the purpose of this chapter, the following words and terms shall have the below-described meanings.
Words and phrases used in this chapter shall have the same meaning as under Penal Code Sections 594 and 594.2, Government Code Sections 38772d(2) and (3), 38773.2, and 53069.3, unless otherwise defined herein, or where otherwise required by the context, in which case such word or phrase shall have such reasonable meaning as shall give effect to the purposes of this chapter.
“Cost (or costs) of removal” means and includes the costs of removal of the graffiti, or if the graffiti cannot be removed cost-effectively, the costs of repair and replacement of property defaced with graffiti, and not the painting, repair or replacement of other parts of the property that were not defaced, and those expenses described in Government Code Section 38722(d)(1).
“Days” means calendar days.
“Graffiti” means any unauthorized inscription, word, figure, mark, sign, decal, tag or design that is written, marked, etched, scratched, drawn, pasted, sprayed, painted or otherwise affixed on any real or personal property.
“Graffiti implement” means any felt tip marker capable of leaving a mark at least three-eighths of an inch wide, etching material that is capable of etching glass, aerosol container or paint stick which contains paint, ink, dye, or any similar substance and which is capable of resulting in the placement of graffiti upon any surface or substance, including but not limited to, glass, metal, concrete, wood and plastic.
“Property owner” means and includes any person who is the owner of real or personal property that has been defaced, or who has primary responsibility for control over the property, or who has primary responsibility for maintenance and repair of the property, and shall include any person owning, leasing, renting, occupying, managing, or having charge of any property or structure.
“Responsible adult” means a parent or guardian having custody or control of an individual under the age of eighteen years. (Ord. 790 § 2(part), 2006).
9.90.020 Prohibitions.
A. It is unlawful for any person to have graffiti on property which can be seen from the public right-of-way or adjacent or neighboring property or to have graffiti on property which causes a depreciation of property values or is detrimental to the health and welfare of neighborhoods.
B. It is unlawful for any person to have in his or her possession a graffiti implement, as defined by this chapter, while within fifty feet of an underpass, bridge, abutment, storm drain, or similar types of infrastructure in the city unless necessary to participate in a function sponsored by the city. This section shall not apply to authorized employees of the city nor shall it apply to the authorized agents or contractors under contract with the city.
C. It is unlawful for any person under the age of eighteen years and not in the presence of a parent or legal guardian to possess any graffiti implement while on school property, grounds, facilities, buildings, or structures, or in areas immediately adjacent to those specific locations upon public property, or on private property without the prior written consent of the owner or occupant of such private property. The provisions of this section shall not apply to the possession of broad-tipped markers by a minor attending or traveling to or from a school at which the minor is enrolled if the minor is participating in a class at the school that formally requires the possession of broad-tipped markers. The burden of proof in any prosecution for violation of this section shall be upon the minor student to establish the need to possess a broad-tipped marker. (Ord. 790 § 2(part), 2006).
9.90.025 Retail sale requirements.
A. It is unlawful for any person, firm or corporation who owns, conducts, operates or manages a retail commercial establishment where marker pens capable of leaving a mark at least three-eighths of an inch wide or aerosol paint containers are sold to the public to store or display or cause to be stored or displayed such spray paint containers and markers 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 shall preclude the storage or display of spray paint 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 person, firm or corporation engaged in the retail sale to the public any graffiti implement, as defined by this chapter, shall keep a log when aerosol containers of paint are purchased. The business representative will log the name, address, driver’s license number and number of aerosol containers of paint purchased, by any individual obtaining five or more aerosol containers of paint.
D. Any person, firm or corporation engaged in the retail sale of any graffiti implement as defined by this chapter, must display at a conspicuous location a legible sign measuring not less than twelve inches by twelve inches with letters at least one-half inch in height which states:
It is unlawful for any person to sell or give to any individual under the age of eighteen years any implement or other device capable of being used to deface property. Any person who maliciously defaces real property is guilty of vandalism which is punishable by a fine, imprisonment, or both. (Ordinance No. 790)
(Ord. 790 § 2(part), 2006).
9.90.030 Penalties.
A. The violation of any section of this chapter shall be a misdemeanor.
B. In addition to the penalties available for misdemeanors under California state law and this chapter, whenever deemed appropriate by the prosecuting attorney, the city shall petition a sentencing court to impose on any defendant under eighteen years of age caught applying graffiti a fine of five hundred dollars for a first offense, one thousand dollars for a second offense, and one thousand five hundred dollars for a third offense, and on any defendant eighteen years of age or older caught applying graffiti a fine of one thousand dollars for a first offense, two thousand dollars for a second offense, and three thousand dollars for a third offense.
C. In addition, a person violating this chapter shall be liable in a civil action brought by the city attorney in an amount not exceeding one thousand dollars, due consideration being given to the following factors in determining the amount of penalty:
1. Costs of removal caused by such person;
2. Special costs to the city in the form of the payment of any reward in connection with the action against such person;
3. The costs, including attorneys’ fees and court costs incurred by any party in connection with the costs of removal of graffiti or such party’s prosecution of a civil claim for reimbursement or damages from such costs of removal.
D. Community service in the city may be imposed in lieu of any penalties and punishments imposed as a result of a conviction for or a guilty or nolo contendere plea to a misdemeanor violation of this chapter. (Ord. 790 § 2(part), 2006).
9.90.035 Conditions on encroachment permits.
A. 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. 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:
1. 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;
2. Right of Access to Remove Graffiti. Applicant shall grant, in writing, the right of entry over and access to such parcels, upon forty-eight hours’ posted notice, by authorized city forces or private contract, 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;
3. Supply City with Graffiti Removal Material. Applicant, and any and all successors in interest, shall, for a specified 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;
4. Owner to Immediately Remove Graffiti. 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 property owners of the lots shall immediately remove any graffiti placed on publicly viewable trees, rocks and structures thereon to the city’s satisfaction. (Ord. 790 § 2(part), 2006).
9.90.040 Declaration of nuisance.
The existence of graffiti in the city of Cotati is declared to be a public nuisance, and may be summarily abated pursuant to Government Code Sections 38773.1 et seq. and 53069.3, and this chapter. (Ord. 790 § 2(part), 2006).
9.90.050 Removal of graffiti – General.
Any person applying graffiti within the city shall have the duty to remove same within twenty-four hours after notice by the city (if the notice is given by the city, the manner in which the graffiti is removed shall be subject to city approval) or by the public owner or private owner of the property involved. Failure of any such person to so remove graffiti shall constitute a violation of this chapter. In the event the notice is from the city, it shall contain an admonition that any costs of removal incurred by the city shall be the responsibility of the person(s) being notified and, if not paid by said person(s), may become a lien or special assessment against the property of said person(s). If the graffiti is on private property, the person required to remove it shall obtain consent of the private property owner to go upon that owner’s property to remove the graffiti. In the event that the person applying graffiti fails to remove the graffiti or pay for the cost thereof within said twenty-four hours, the amount of the cost of removal shall become a personal obligation of such person and if said costs of removal are incurred by the city, they shall further become a special assessment or lien against the property of such person. The special assessment or lien may be collected at the same time and in the same manner as property taxes as provided in Government Code Section 38773.5 or 38773.2. Any person subject to the provisions of this section may appeal as provided in Section 9.90.100. (Ord. 790 § 2(part), 2006).
9.90.060 Removal of graffiti – Responsible adults.
Where graffiti is applied by an individual under the age of eighteen years, in addition to such individual, the responsible adult shall be responsible for such removal or payment for the cost thereof. In the event that the responsible adult fails to remove the graffiti or pay for the cost thereof within seven days after being served with notice to remove the graffiti, the amount of the cost of removal shall become the personal obligation of the responsible adult and if said costs of removal are incurred by the city, they shall further become a lien or special assessment against the property of the responsible adult. In the event the notice is from the city, it shall contain an admonition that any costs of removal incurred by the city shall be the responsibility of the person(s) being notified and, if not paid by said person(s), may become an assessment against the property of said person(s). If the graffiti is on private property, the person required to remove it shall obtain consent of the private property owner to go upon that owner’s property to remove the graffiti. Failure of the responsible adult to remove the graffiti described in the notice shall constitute an additional and separate violation of this chapter. The special assessment may be collected at the same time and in the same manner as property taxes as provided in Government Code Section 38773.5 or 38773.2. A responsible adult subject to the provisions of this section may appeal as provided in Section 9.90.100. (Ord. 790 § 2(part), 2006).
9.90.070 Removal of graffiti – Public property.
A. Whenever the superintendent of public works or his/her designated representative determines that graffiti exists upon property owned by the city, the person applying the graffiti and/or the responsible adult, as the case may be and if known, shall be notified to remove the graffiti in accordance with Section 9.90.050 or 9.90.060, as the case may be. In the event the graffiti is not removed in accordance with said notice or an appeal is filed pursuant to Section 9.90.100, notwithstanding anything to the contrary contained herein, the city may proceed to remove the graffiti at any time after the time specified in said notice(s) has passed. The taking of an appeal under Section 9.90.100 shall not stay the city’s power to remove the graffiti or preclude the city from seeking recovery of its costs of removal from the responsible person and/or responsible adult, or imposing a special assessment against said person’s or adult’s property.
B. When property is owned by a public entity other than the city, the removal of the graffiti may be authorized by the superintendent of public works or his/her representative, and removal undertaken by city personnel or an independent contractor if:
1. The other public entity does not have an anti-graffiti rule or law and does not intend to take steps to remove the graffiti, or the other public entity has an anti-graffiti rule or law but does not intend to take steps to remove the graffiti;
2. The other public entity has provided to the city written consent authorizing the city to remove the graffiti; and
3. The person applying the graffiti and/or responsible adult, as the case may be and if known, is notified to remove the graffiti pursuant to Section 9.90.050 or 9.90.060 and the removal is not effected in accordance with said notice. (Ord. 790 § 2(part), 2006).
9.90.080 Removal of graffiti – Private property owner.
A. If graffiti is applied to private property, the city, by the police chief or his/her designee, shall, pursuant to Sections 9.90.050 and/or 9.90.060, first seek to have the graffiti removed by those persons who applied it, and/or their responsible adult(s), if applicable. If such enforcement actions are unsuccessful or if the responsible person and/or responsible adult are unknown, then the city may pursue removal by the property owner him/her/itself.
B. Private property owners shall remove graffiti from their property within seven calendar days after receiving notification to the property owners by the city to remove such graffiti. Any property owner subject to the provisions of this section may appeal as provided in Section 9.90.100.
C. Graffiti shall be removed or completely covered in a manner that renders it inconspicuous. When graffiti is painted out, the color used to paint it out shall match the original color of the surface, or the entire surface shall be repainted with a new color that is aesthetically compatible with existing colors and architecture. The removal shall not leave shadows and shall not follow the pattern of the graffiti such that letters or similar shapes remain apparent on the surface after graffiti markings have been removed. If the area is heavily covered with graffiti, the entire surface shall be repainted.
D. Notices to remove graffiti shall be given to private property owners by the city and shall be addressed to the name and address as they appear on the last tax assessment role or in other records maintained by public agencies. Said notice shall state:
1. The address of the real property on which the graffiti is located;
2. The description and the general location of the graffiti;
3. The date by when the graffiti is to be removed;
4. The name(s) or identity(ies) of the person(s) responsible for removing the graffiti, if known;
5. The scope of the removal and the manner in which the removal is to take place and the nature of the repair, if any, of the affected property; and
6. The possibility that the failure to remove the graffiti may cause the property owner’s property to be assessed for the costs incurred by the city in removing the graffiti. Notice shall be deemed given by depositing a copy of the notice in the United States mail, certified with postage fully affixed, or personally delivering a copy of the notice to the owner of the property. The service is complete at the time of deposit in the mail or when personal service is effectuated. The failure of any person to actually receive such notice shall not affect the validity of any legal proceedings regarding removal of the graffiti.
E. The police chief or his/her designee may follow the notice with either a telephone call or visitation by city representatives to secure immediate voluntary response on the part of the property owner and/or tenant. The property owner will be encouraged to remove the graffiti within seven days, or use some other source to remove the graffiti within the specified time frame. Provided the property owner has made a good faith effort to remove the graffiti in the proscribed time of seven days, the property owner and/or tenant shall not be subject to the penalties as specified in Section 9.90.030, or the costs of removal.
F. The city may remove the graffiti applied to privately owned property only with the consent of the property owner, and if unsuccessful in collecting the costs of removal from the responsible party, the city shall charge the property owner for the cost of removal. If consent is withheld, the city may, in addition to and not in lieu of any other available remedies, abate the graffiti as a nuisance pursuant to Section 9.90.090 et seq., and in connection therewith, obtain a warrant or other order to allow the city to enter the property to remove the graffiti.
G. In the event that the city removes graffiti and the property owner fails to reimburse the city for the cost of removal within thirty days of notice of the amount of said costs, such amount shall become a lien or special assessment against the property. (Ord. 790 § 2(part), 2006).
9.90.090 Abatement if no removal.
A. In the event that (1) the responsible person described in Section 9.90.050, (2) the responsible adult described in Section 9.90.060, and/or (3) the property owner described in Section 9.90.080, do not remove the graffiti after notice and appeal, if any, the city may remove the graffiti or abate the graffiti as a nuisance.
B. Notwithstanding anything else herein to the contrary, in the event that (1) the responsible person described in Section 9.90.050, (2) the responsible adult described in Section 9.90.060, and/or (3) the property owner described in Section 9.90.080, do not remove the graffiti after notice and appeal, and in the further event that the city shall abate the graffiti as a nuisance under Sections 9.100.010 et seq., such nuisance may be ordered abated by the council without any further public hearing.
C. Except as provided in Section 9.90.070(A), any appeal timely brought under Section 9.90.100 shall stay (1) any removal or abatement action initiated by the city, and (2) a person’s obligation to remove or pay for the costs of removal of any graffiti, the removal of which is the responsibility of such person pending the outcome of said appeal.
D. In emergency cases, the police chief or his or her designee is authorized to summarily abate gang-related graffiti in lieu of removal by the property owner under Section 9.90.080. The abatement may be undertaken by city staff representatives, or by outside contractors. For purposes of this section only, gang-related graffiti shall be defined as graffiti that is placed on private or public property by some person or person reasonably believed by the city’s police department or other local law enforcement agency to be a member of, or affiliated with a criminal street gang, as that term is defined in Penal Code Section 186.22. The costs of summary abatement, including the costs of removal and other expenses of abatement, may be assessed against the person causing or creating the graffiti, or a responsible adult, or an emancipated minor who is responsible for creating the graffiti. Recovery of the costs of removal or expenses of abatement may be enforced by the city in the manner and following the procedures described in Government Code Section 38773.2. (Ord. 790 § 2(part), 2006).
9.90.100 Hearing and appeal.
A. The property owner or any other person subject to this chapter may request, in writing, a hearing with respect to any of the duties, responsibilities or liabilities under this chapter before the police chief or his/her designee within ten days after mailing or delivery of the notice referred to in Section 9.90.050, 9.90.060 or 9.90.070. The police chief shall schedule a hearing within thirty days of receipt of the request for a hearing. The police chief shall hear facts and testimony relevant to the hearing and shall not be limited to the technical rules of evidence. The property owner or any other person subject to this chapter may appear at the hearing and/or submit a sworn written statement in time for consideration at the hearing. The police chief shall notify the property owner or any other person subject to this chapter of the decision within fifteen days of the hearing. The police chief may delegate any of the authority granted to the chief under this section to an appropriate hearing officer.
B. The property owner or any other person subject to this chapter may appeal the decision of the police chief by filing a written appeal with the city clerk within ten days of receipt of the decision of the police chief. The appeal shall be heard within a reasonable time of receipt of the notice of appeal. The city clerk shall give written notice of the time and place of the hearing to the property owner or any other person subject to this chapter. The appeal shall be heard by the city council, which shall not be limited by the technical rules of evidence. The city council may affirm, amend or reverse the decision of the police chief, and may order the graffiti removed by city forces or at city expense. In making its decision, the city council may consider, among other things, the following factors: (1) the number of times which graffiti was placed on the property of the property owner; (2) whether the property owner took reasonable measures to prevent graffiti from being placed on the property; (3) the cost of removing the graffiti; and/or (4) the cooperation of the property owner with the city toward eradicating the graffiti. (Ord. 790 § 2(part), 2006).
9.90.110 Lien notices.
Prior to the recordation of any lien or special assessment authorized pursuant to this chapter, notice shall be given to the property owner(s) in accordance with Government Code Section 38773.1, 38773.2 or 38773.5. No lien or special assessment shall be recorded until after such notice has been provided. (Ord. 790 § 2(part), 2006).
9.90.120 Liens.
All liens recorded pursuant to this chapter shall comply with the requirements of Government Code Section 38773.2. Any fee imposed on the city by the county recorder in connection with the processing and recording of any lien hereunder, or the providing of notice to the property owner, may be recovered from the property owner as provided in Government Code Section 38773.2. (Ord. 790 § 2(part), 2006).
9.90.130 Costs.
Whenever this chapter allows for the recovery of costs, such costs may include, but are not limited to, administrative costs, court costs, attorney’s 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 applying graffiti. (Ord. 790 § 2(part), 2006).
9.90.140 Criminal enforcement.
The remedies provided in this chapter are cumulative and are in addition to and not in lieu of any other means of enforcement which are available to the city, including but not limited to, criminal prosecutions, which may be brought against persons violating this chapter. (Ord. 790 § 2(part), 2006).
9.90.150 Reward.
The city may pay to any person who provides information which leads to the arrest and conviction or final adjudication of any person who applies graffiti, a reward as established by council resolution.
A. Notice of the offer of reward, if directed by the city council, shall be duly published in a newspaper of general circulation in the city. Funds for the advertising shall be appropriated from the anti-graffiti trust fund.
B. The determination as to whether an individual is qualified to receive a reward and the amount up to the specific or aggregate amount set by the offer of reward, and the person or persons who shall receive the reward or portion thereof, shall be subject to the sole discretion and approval of the city council after report of findings by and the recommendation of the police chief. Payment of any reward or rewards, as provided in this section shall be subject to the following limitations:
1. A payment of reward may be prorated with respect to the information received or the number of sources from which received; provided, however, that no payment or aggregate payment of city funds shall exceed the aggregate sum designated by the offer of reward;
2. The city council may determine what portion of a reward, if any, is to be paid to any one or more persons;
3. No reward shall be paid to a city officer, employee or member of the immediate family of such officer or employee, or to a public officer or employee whose employment includes duties of law enforcement, or to any volunteer who participates in a city-sponsored graffiti abatement program; and
4. No reward shall be paid to any person or persons involved in the misconduct which prompted the offering and authorization of the reward.
C. No reward money may be paid without the provisions of this section having been first satisfied. (Ord. 790 § 2(part), 2006).
9.90.160 Appropriations.
The city may apply city funds (as defined in Government Code Section 53069.3(3)) to remove graffiti from publicly or privately owned property located within the city and to replace or repair publicly or privately owned property within the city that has been defaced with graffiti that cannot be removed cost-effectively. (Ord. 790 § 2(part), 2006).
9.90.164 Community education.
The city manager, or his or her designee, may conduct regular programs to provide community education regarding the prevention of graffiti. (Ord. 790 § 2(part), 2006).
9.90.165 Trust fund.
The city council creates the city of Cotati’s anti-graffiti trust fund. Penalties assessed against violators of this chapter shall be placed in the fund, along with any monetary donations received from persons wishing to contribute to the fund. The council shall direct the expenditures of moneys in the fund. Such expenditures shall be limited to the payment of the cost of removal, the payment, at the discretion of the city manager, of rewards for information leading to the conviction of violation of the chapter and the costs of administering the chapter. (Ord. 790 § 2(part), 2006).
9.90.170 Nonliability.
Prior to the entry onto private or public (if other than the city) property by the city for the purpose of graffiti removal, written consent in a form acceptable to the city attorney shall be obtained from the property owner or designated agent for authorization of entry and release of liability. Notwithstanding the foregoing, consent of the property owner or responsible adult shall not be required if the city is authorized by court order to enter the property for the purpose of graffiti removal. (Ord. 790 § 2(part), 2006).
9.90.180 Administrative fee.
A reasonable administrative fee (which may include, without limitation, courts costs, staff time, law enforcement costs and attorney’s fees) may be imposed against any person found in violation of this chapter as a part of any abatement hereunder in addition to and not in lieu of any other fine, charge, fee, cost, assessment or payment imposed in connection with any violation of this chapter. Said fee may be included in the costs of removal upon which an assessment may be imposed hereunder. (Ord. 790 § 2(part), 2006).