Chapter 8.04
GRAFFITI CONTROL
Sections:
8.04.020 Graffiti declared a public nuisance.
8.04.050 Removal of graffiti with consent of responsible party.
8.04.060 Abatement of graffiti and recovery of expense of abatement from responsible party.
8.04.070 Recovery of expense of abatement from minor and parent or guardian.
8.04.080 Punishment and penalty provisions.
8.04.090 Sale and possession of graffiti implements.
8.04.110 Accessibility to graffiti implements.
8.04.010 Purpose.
The purpose of this chapter is to provide programs for removal of graffiti from public and private property within the City and to establish regulations designed to prevent and control the spread of graffiti in Newman.
The City finds and determines that the increase of graffiti on public and private buildings, structures and other places creates a condition of blight within the City which can result in the deterioration of property values, business opportunities and enjoyment of life for persons using adjacent and surrounding properties. The City further finds and determines that graffiti is inconsistent with the City’s property maintenance goals, crime prevention programs and aesthetic standards, and unless graffiti is quickly removed from public and private properties, other properties soon become the targets of graffiti.
The City finds and declares that it is the right of every person, regardless of race, color, creed, religion, national origin, sex, age or handicap to be secure and protected from intimidation and physical harm caused by the activities associated with the application of graffiti and/or tagging and the property destruction done by said graffiti and/or tagging. It is not the intent of this chapter to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. (Ord. 2009-5 § 1, 6-9-2009)
8.04.020 Graffiti declared a public nuisance.
It is hereby declared that graffiti is a public nuisance and is subject to abatement and punishment as defined in this code. (Ord. 2009-5 § 1, 6-9-2009)
8.04.030 Definitions.
As used in this chapter:
“Abatement” means any action the City may take to remove or alleviate a nuisance including, but not limited to, demolition, removal, repair, cleaning, boarding and securing or replacement of property.
“Graffiti” means any inscription, word, figure or design that is marked, etched, scratched, drawn, sprayed, painted, pasted or otherwise affixed to or on any surface without authorization from the owner thereof or, despite authorization, is otherwise deemed by the City to be a public nuisance.
“Graffiti implement” means a pressurized container, ink marker or paint stick.
“Paint stick” means any device containing a solid form of paint, chalk, wax, epoxy or other similar substance capable of being applied to a surface and upon application leaving a mark upon property.
“Pressurized container” means any can, bottle, spray device or other mechanism designed to propel liquid which contains ink, paint, dye or other similar substance which is expelled under pressure, either through the use of aerosol devices, pumps or similar propulsion devices.
“Property” means real or personal property, whether publicly or privately owned, within the City.
“Responsible party” means any person who is the owner of property, or who has primary responsibility for control over property, or who has primary responsibility for the repair and maintenance of property. (Ord. 2009-5 § 1, 6-9-2009)
8.04.040 Graffiti prohibited.
A. It is unlawful for any person to apply graffiti upon any property, structure or surface within the City of Newman.
B. It is unlawful for any person owning or otherwise being in control of any real property within the City of Newman to permit or allow any graffiti which is visible from the street or other public or private property to be placed upon such property.
C. It is unlawful for any responsible party to permit any real or personal property that has been defaced with graffiti to remain so defaced for a period longer than three calendar days after having been given written notice requiring removal of graffiti.
D. It is unlawful for any person to assist, aid, abet or encourage another to violate the provisions of this chapter by words or overt act. (Ord. 2009-5 § 1, 6-9-2009)
8.04.050 Removal of graffiti with consent of responsible party.
The City may elect to remove graffiti in a manner selected by the City and at the expense of the City after having secured the consent of the responsible party. (Ord. 2009-5 § 1, 6-9-2009)
8.04.060 Abatement of graffiti and recovery of expense of abatement from responsible party.
If the City is unable to obtain the consent of the responsible party or if the City elects to have the graffiti removed at the expense of the responsible party, the City may commence the abatement of the graffiti nuisance and recover the expense of the abatement proceedings from the responsible party according to the procedures contained herein.
A. The City shall give written notice of order to abate to the responsible party requiring removal of the graffiti within three calendar days of the service of the notice of order to abate on the responsible party. The notice of order to abate shall:
1. Identify the location of the graffiti to be removed;
2. Require removal within three calendar days from service of the notice of order to abate;
3. Advise the responsible party that failure to remove the graffiti will result in removal by the City with the cost of removal assessed against the responsible party and his/her property; and
4. Advise the responsible party that an administrative hearing may be requested as provided herein.
B. The notice of order to abate may be served on the responsible party by any of the following methods:
1. Personal service; or
2. Service by registered mail at the address of the responsible party shown on the last equalized assessment roll if the responsible party’s address is different than the location of the graffiti; or
3. If the responsible party’s address is the same as the location of the graffiti, by posting a copy of the notice on the property where the graffiti is located and notice via regular mail.
Service of the notice shall be deemed to be complete on the date personal service was made or the date the notice was posted on the property.
C. The responsible party may request a hearing regarding the removal of the graffiti before the City Manager or his or her designee (“Hearing Officer”) provided a written request for a hearing is received by the office of the City Manager within three calendar days of the date that the service of the notice of order to abate was deemed complete. Failure to request a hearing in the manner and within the time required shall be deemed a waiver of the right to a hearing.
D. The City Manager or his or her designee (“Hearing Officer”) shall give the responsible party not less than 48 hours’ notice of the hearing date, which notice shall be served and deemed complete in the same manner as required by subsection (B) of this section.
E. 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. The determination of the Hearing Officer is final.
F. 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.
G. If a hearing has not been requested by the responsible party, the City may enter upon the property and cause such nuisance to be removed in the manner determined most appropriate by the City.
H. 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.
I. If payment is not made within 30 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 $100.00 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.
J. In the event the expense of abatement has not been paid within 30 days from the date of issuing an accounting and demand for payment, the amount unpaid, including any penalty and interest thereon, 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.
K. 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. (Ord. 2009-5 § 1, 6-9-2009)
8.04.070 Recovery of expense of abatement from minor and parent or guardian.
The recovery of expense of abatement of any nuisance resulting from the defacement of property by graffiti or any other inscribed material by a minor who has created, caused, or committed the nuisance shall be according to the following procedure:
A. 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 48 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. Notice of the hearing shall be served upon the parent(s) or guardian(s) and the minor by either personal service or by registered mail at the last known address of the parent(s) or guardian(s) and 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 expense of abatement from the minor and the parent or guardian having custody and control of the minor. The determination of the Hearing Officer is final.
B. 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.
C. 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 30 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 $100.00 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.
D. In the event the expense of abatement has not been paid within 30 days from the date of issuing an accounting and demand for payment, the amount unpaid, including any penalty and interest thereon, 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.
E. As an alternative to a lien and pursuant to Government Code Section 38773.6, the funds 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.
F. In addition to any other remedy provided herein 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. (Ord. 2009-5 § 1, 6-9-2009)
8.04.080 Punishment and penalty provisions.
A. In addition to all other remedies or penalties provided by law, an administrative fine shall be imposed for a violation of this chapter:
1. A penalty of $200.00 for a first violation;
2. A penalty of $300.00 for a second violation within one year; and
3. A penalty of $500.00 for each additional violation within one year.
B. Violation of any section of this chapter may be filed as an infraction or a misdemeanor at the discretion of the City Attorney.
C. Community service in and for the City of Newman may be imposed by the court in addition to any penalty imposed pursuant to this section where there has been a conviction or guilty or nolo contendere plea to a violation of this chapter.
D. Any community service which is required pursuant to this section of a person under the age of 18 years may be required by the court to be performed in the presence and under the direct supervision of the person’s parent or legal guardian.
E. If a minor is personally unable to pay any fine or restitution levied for violating this chapter, the parent or legal guardian shall be liable for the payment of the fine or restitution for any intentional acts of the minor. (Ord. 2009-5 § 1, 6-9-2009)
8.04.090 Sale and possession of graffiti implements.
It shall be unlawful for any person:
A. To sell, exchange, give, loan or in any way furnish any person under the age of 18 years any “pressurized container” as defined in NCC 8.04.030;
B. Under the age of 18 years to have in his or her possession any “pressurized container” as defined in NCC 8.04.030 while upon public property or upon private property without the consent of the owner of such private property unless the minor is using the pressurized container under the supervision of a parent, teacher or legal guardian. (Ord. 2009-5 § 1, 6-9-2009)
8.04.100 Signs required.
Any person, organization, company, firm or association engaged in the retail sale of aerosol containers of paint and other liquid substances capable of defacing property must display at the location of retail sale a sign clearly visible and legible to employees and customers which states as follows:
IT IS UNLAWFUL FOR ANY PERSON TO SELL OR GIVE TO ANY INDIVIDUAL UNDER THE AGE OF EIGHTEEN YEARS, WHO IS NOT ACCOMPANIED BY A RESPONSIBLE ADULT, ANY AEROSOL CONTAINER OF PAINT OR OTHER LIQUID SUBSTANCE CAPABLE OF DEFACING PROPERTY.
(Ord. 2009-5 § 1, 6-9-2009)
8.04.110 Accessibility to graffiti implements.
Every person, firm, or entity who owns, conducts, operates, or manages a retail commercial establishment selling graffiti implements within the City shall store, stock, keep, or display for sale or transfer graffiti implements in an area secure and not accessible to the public in the regular course of business and accessible only to employees of such retail commercial establishments. (Ord. 2009-5 § 1, 6-9-2009)
8.04.120 Reward.
The City hereby offers a reward of $100.00 or such other sum as the Council may direct for information leading to the arrest and conviction of any person injuring, defacing, or destroying property by the application of graffiti. (Ord. 2009-5 § 1, 6-9-2009)