Chapter 9.09
ABATEMENT OF GRAFFITI NUISANCES
Sections:
9.09.010 Declaration of graffiti as nuisance.
9.09.020 Prompt removal of graffiti required.
9.09.030 Abatement of graffiti by city.
9.09.040 Hearing procedure for graffiti abatement and expense recovery.
9.09.050 Preservation of evidence.
9.09.010 Declaration of graffiti as nuisance.
The city council of the city of Kerman hereby declares that the creation or maintaining of graffiti is a public nuisance that creates unsightly conditions and a deterioration of aesthetic values in our community and that erodes property values and interferes with the comfortable enjoyment of life or property. The creation of graffiti is a crime and allowing the continued display or maintaining the existence of graffiti encourages the creation of additional graffiti.
The council finds that the most effective means of preventing the proliferation of graffiti is the prompt eradication of graffiti wherever it appears. As used in this Chapter 9.09, "graffiti or other inscribed material" includes any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on any real or personal property. (Ord. 03-10 §1(part), 2003).
9.09.020 Prompt removal of graffiti required.
A. It is unlawful for the owner or occupant of any property used for industrial or commercial purposes that has been defaced with graffiti to allow the structural surfaces of the property to remain so defaced for a period of ten calendar days after having been given written notice of a violation of this section. "Structural surface" as used in this section shall mean walls, trim, siding, facia, fences, and similar integral structural portions of real or personal property, but shall not include glazing.
B. A notice of violation of this section shall include a form of Consent to Enter to Abate Graffiti that contains substantially the same provisions and information set forth below. Either the notice of violation or the Consent form shall contain notice (1) that the owner or occupier of the defaced property must remove, repair, or paint over the graffiti or deliver the Consent form to the city clerk within ten days of the date of the notice of violation; and (2) if the owner or occupier does not take either of the above actions within ten days, the city will commence abatement and expense recovery proceedings pursuant to Chapter 9.09 of this Code. The notice and consent form shall contain at a minimum the following:
GRAFFITI ABATEMENT
NOTICE OF VIOLATION AND CONSENT FORM
You are hereby notified that graffiti exists on the property that you own or occupy at _______________________________ in the City of Kerman. The Kerman Municipal Code requires the owner or occupier of the defaced property to remove, repair, or paint over the graffiti on the walls and other structural portions (but not including window or door glazing on industrial or commercial properties) or to deliver the following Consent form to the City Clerk within 10 days of the date of the notice of violation. If the owner or occupier does not take either of the above actions within 10 days, the City will commence abatement and expense recovery proceedings pursuant to Chapter 9.09 of the Kerman Municipal Ordinance.
Dated: ____________________ Name & Title:__________________
CITY OF KERMAN
ANTI-GRAFFITI PROGRAM
CONSENT TO REMOVE GRAFFITI
PROPERTY AT: ___________
I, the undersigned owner of the property, or the authorized agent representing the property owner, hereby grant consent to the City of Kerman and/or its agents to enter upon the above-described property for the purpose of graffiti removal. I understand the services provided are limited to the removal of graffiti or the painting of the immediate area where the vandalism appears. I understand that the City of-Kerman does not remove graffiti from second stories or higher or from garbage containers signs and certain other surfaces. I also understand that signing this document does not alleviate my responsibility for the removal of the graffiti. I further understand an effort will be made to match the color of the building, however, colors cannot be matched exactly.
I understand that the City will assume 100% of the cost of abatement.
I hereby release and hold harmless the City of Kerman, its officers, agents, and employees of and from any and all liability claims, demands, causes of actions or obligations whatsoever arising out of or in any way related to entry upon my property for the purpose of removing graffiti. This consent shall remain in full force and effect unless and until I provide a written revocation to the City of Kerman.
NAME: ______________
(Please Print)
SIGNATURE: ______________
DATE: ______________
Please deliver within 10 days of the Notice of Violation to:
City Clerk
City of Kerman
Code Enforcement/Graffiti
Abatement
850 South Madera Avenue
Kerman, California 93630
(Ord. 03-10 §1(part), 2003).
9.09.030 Abatement of graffiti by city.
A. Upon receiving the consent from the owner or occupier of property where graffiti has been found, the city shall proceed to abate the graffiti. Cost of removal shall include the cost of labor and materials, abatement program administration and related costs.
B. If the owner or occupier of the graffitied property does not provide a consent to the city clerk within ten days of the notice of violation, the city shall notify the owner or occupier of the opportunity for hearing as provided in Section 9.09.040 of this chapter. At the conclusion of the hearing, or if no hearing is requested or held, the hearing officer may order the abatement of the graffiti according to this chapter, and the owner or occupier, or his or her property shall be billed, assessed or liened for the full cost of the graffiti abatement, including, but not limited to the cost of labor and materials, abatement program administration, court costs and attorney’s fees and related costs. (Ord. 03-10 §1(part), 2003).
9.09.040 Hearing procedure for graffiti abatement and expense recovery.
A. Property Owner or Occupier. Abatement of graffiti nuisance and recovery of expense of abatement proceedings commenced against a responsible party who does not deliver a written consent pursuant to this chapter shall be according to the following procedure:
1. The city manager, or his or her designee ("hearing officer"), shall give the responsible party not less than forty-eight hours notice of a hearing to be held by the hearing officer for the purpose of showing cause why the public nuisance should not be abated by the city. Following notice, the hearing shall be held by the hearing officer at the time, date and place designated and at such hearing the responsible party may be heard and provided with the opportunity to show cause why the nuisance should not be abated. Following the hearing, the hearing officer shall determine whether abatement of the nuisance shall be commenced;
2. If the hearing officer determines that abatement of the nuisance shall be commenced, the city may enter upon the property and cause such nuisance to be removed in the manner determined most appropriate by the city;
3. If a hearing has not been requested by the responsible party, or if the responsible party does not appear at the hearing, the city may enter upon the property and cause such nuisance to be removed in the manner determined most appropriate by the city. When appropriate, the hearing officer may recommend to the city council that the city file a court action for a court order allowing the city to enter the property and abate the nuisance and to collect all costs associated with the action and the abatement;
4. Upon removal of the public nuisance, the city may provide an accounting of the expense of abatement along with a demand for payment to the responsible party;
5. If payment is not made within thirty 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 one hundred dollars 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;
6. In the event the expense of abatement has not been paid within thirty days from the date of issuing an accounting and demand for payment, the amount unpaid including any penalty and interest therein, shall constitute a lien pursuant to Government Code Sections 38773 and 38773.1 against the property of the responsible party. Prior to recording a notice of lien, the hearing officer shall provide notice pursuant to Government Code Section 38773.1. Any such lien 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;
7. As an alternative to a lien and pursuant to Government Code Section 38773.5, the expense of abatement may constitute a special assessment against a parcel of land owned by the responsible party. The assessment shall be collected as provided for in Government Code Section 38773.5;
8. In addition to any other remedy provided in this chapter or available at law, the expense of abatement pursuant to Government Code Sections 38773, 38773.1 and 38773.5 shall constitute a personal obligation against the responsible party.
B. Graffiti Perpetrators (Minors). The recovery of expense of abatement of any nuisance resulting from the defacement of property by graffiti or any other inscribed material by any person shall include those penalties and remedies provided by the laws of the state of California including, but not limited to the California Penal Code. In addition, if it is a minor who has created, caused or committed the nuisance recovery of expense of abatement of any nuisance in violation of this chapter shall be according to the following procedure:
1. The city manager, or his or her designee ("hearing officer"), shall give the minor and the parent or guardian having custody and control of the minor not less than forty-eight hours notice of a hearing to be held by the hearing officer for the purpose of showing cause why the city should not recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor. Following notice, the hearing shall be held by the hearing officer at the time, date and place designated and at such hearing the minor and the parent or guardian having custody and control of the minor may each be heard and provided with the opportunity to show cause why the city should not recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor. Following the hearing, the hearing officer shall determine whether the city should recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor;
2. If the hearing officer determines that the city should recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor, the city may provide an accounting of the expense of abatement along with a demand for payment to the minor and the parent or guardian having custody and control of the minor;
3. The parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor for the expense of abatement pursuant to Government Code Sections 38772, 38773.2 and 38773.6. If payment is not made within thirty 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 one hundred dollars 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;
4. In the event the expense of abatement has not been paid within thirty days from the date of issuing an accounting and demand for payment, 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 minor and against the property of the parent or guardian having custody and control of the minor. Prior to recording a notice of lien, the hearing officer shall provide notice pursuant to Government Code Section 38773.2. Any such lien 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;
5. As an alternative to a lien and pursuant to Government Code Section 38773.6, the expense of abatement shall constitute a special assessment against a parcel of land owned by the minor or by the parent or guardian having custody and control of the minor. The assessment shall be collected as provided for in Government Code Section 38773.6;
6. In addition to any other remedy provided in this chapter or available at law, the expense of abatement pursuant to Government Code Section 38772 shall constitute a personal obligation against the minor and a personal obligation against the parent or guardian having custody and control of the minor;
7. Any funds recovered from a minor or the guardian having custody and control of the minor shall be shared ratably by the victim and the city so that any owner and occupier that has made payment for graffiti abatement pursuant to this chapter shall be reimbursed;
8. The remedies of this chapter are supplemental to all other remedies provided by law in relation to graffiti, its prevention, abatement, punishment or cost recovery. (Ord. 03-10 §1(part), 2003).
9.09.050 Preservation of evidence.
The Kerman Police Department shall provide its written acknowledgment that it has obtained and preserved all needed evidence concerning the creation of the graffiti prior to the repair or abatement of any graffiti. (Ord. 03-10 §1(part), 2003).
9.09.060 Severability.
The city council declares that it would have enacted each and every portion of this chapter, and any ruling that a portion of this chapter is unenforceable shall have no effect upon the remaining provisions of this chapter. (Ord. 03-10 §1(part), 2003).