Chapter 9.49
GRAFFITI ABATEMENT
Sections:
9.49.030 Unlawful to apply graffiti—Prohibition of defacement.
9.49.040 Possession of graffiti implements by minors prohibited.
9.49.050 Possession of graffiti implements prohibited in designated public places.
9.49.060 Limiting access to graffiti implements—Furnishing to minors prohibited.
9.49.070 Maintenance of graffiti prohibited.
9.49.080 Removal of graffiti by perpetrator.
9.49.100 Ease of removal provisions.
9.49.110 Rewards for information.
9.49.120 Penalties and civil liability of parents.
9.49.130 Violations—Civil remedies available.
9.49.010 Purpose.
The ordinance codified in this chapter was enacted for the purpose of establishing procedures whereby all city owned and all privately owned property within the city limits may be maintained free of graffiti. The presence of graffiti on buildings and structures creates a condition of blight resulting in deterioration of property and business values for adjacent properties, all to the detriment of the city, and therefore the abatement of graffiti is necessary for the protection of the public health, safety and welfare.
(Ord. 2091 § 1, 1-22-02)
9.49.020 Definitions.
For the purpose of this chapter, the following words shall have the meanings respectively ascribed to them in this section:
A. “Aerosol paint container” means any aerosol container, regardless of the material from which it is made, that is adapted or made for the purpose of spraying paint, undercoating, spray insulation, or other substance capable of defacing property.
B. “City” shall mean the city of South Gate.
C. “Costs” shall mean and include, but is not limited to, court costs, attorneys’ 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 who created, caused, or committed the graffiti or other inscribed material on the publicly or privately owned permanent real or personal property within the city.
D. “Enforcement officer” shall mean any city official authorized to enforce the provisions of this chapter, including, but not limited to, the South Gate police department, South Gate departments of public works and community development, or designees thereof, as well as any contract agent authorized by the city to abate graffiti nuisances described in this chapter.
E. “Felt-tip marker” means any indelible marker or similar implement with a tip that, at its broadest width, is greater than one-eighth of an inch, containing ink or other pigmented liquid that is not water-soluble.
F. “Graffiti” means any unauthorized inscription, word, figure, painting, mark, design, or other defacement that is written, marked, etched, scratched, sprayed, drawn, painted or engraved on or otherwise glued, posted, or affixed to or on any surface of city-owned property or non-city-owned property within the boundaries of the city by or with, but not limited to, any of the following: felt-tip marker, paint stick or graffiti stick or graffiti implement, to the extent that the same was not authorized in advance by the owner or occupant thereof.
G. “Graffiti implement” means an aerosol paint container, a felt-tip marker, gum label, paint stick or graffiti stick, etching tool or any other device capable of scarring or leaving a visible mark on glass, metal, concrete or wood or any other surface, etching cream or other such solvent, adhesive label, or any other device capable of being used to leave a visible mark at least one-eighth of an inch in width upon any surface of any material.
H. “Paint stick” or “graffiti stick” means any device containing a solid form of paint, chalk, wax, epoxy or other similar substance capable of being applied to a surface by pressure, and upon application, of leaving a mark at least one-eighth of an inch in width.
I. “Property owner” shall mean any person who owns, possesses, occupies, or otherwise has responsibility for the repair or maintenance of real property.
J. “Responsible person” shall include any minor (or parent or guardian of a minor) or other person who causes or permits the application of graffiti or other inscribed material, as well as any property owner of real property at which there exists graffiti.
K. “Retrofitting” shall mean and include, without limitation, the restoration, modification or alteration of a building or structure to remove graffiti, to prevent or inhibit the recurrence of graffiti, or to return the building or structure to an acceptable, usable, unblemished, unblighted, or original state or condition.
L. “Structures” shall mean any structure as defined in the city’s building code, and shall also include, but not be limited to, buildings, walls, fences, poles, signs, posts, railings, benches, tables, waste containers, sidewalks, streets, cargo/shipping containers.
M. “Vehicle” shall mean a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails. A vehicle shall include, but not be limited to, a trailer.
(Ord. 2294 § 1, 4-10-11: Ord. 2091 § 2, 1-22-02)
9.49.030 Unlawful to apply graffiti—Prohibition of defacement.
A. It is unlawful or any person to apply graffiti to any trees or structures including, but not limited to, buildings, walls, fences, poles and signs (hereinafter, “structures”) on any city-owned property or without the permission of the owner or occupant, on any non-city-owned property within the boundaries of the city.
B. It is also unlawful for any person to intentionally deface, tear down, obliterate or destroy any copy, transcript or extract of or from any ordinance of the city posted in any public place or any proclamation, advertisement or notice set up at any place by authority of any ordinance of the city before the expiration of the time such notice was to remain set up.
C. It is also unlawful for any person to erect, construct, place or maintain any signboard, billboard, sign or advertisement in, over or on any public highway of the city with the exception of public transportation signs as provided in this code and signs and advertisements of a temporary or seasonal nature and of general community interest that may be authorized by the city’s code.
D. The South Gate police department shall remove every unauthorized sign, handbill or advertisement affixed to or posted contrary to the provisions of this section.
E. Violation of subsection A of this section shall be a misdemeanor punishable by a fine not to exceed five hundred dollars or by imprisonment in the county jail not to exceed six months or by both such fine and imprisonment.
F. Violation of subsection B or C of this section is an infraction punishable by a fine not to exceed two hundred fifty dollars.
(Ord. 2091 § 3, 1-22-02)
9.49.040 Possession of graffiti implements by minors prohibited.
It is unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement while on any school property, grounds, facilities, buildings or structures, or in areas immediately adjacent to these specific locations upon public property, or upon 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 felt-tip markers by minors attending, or traveling to or from school at which the minor is enrolled, if the minor is participating in a class at the school which formally requires the possession of felt-tip 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 felt-tip marker.
(Ord. 2091 § 4, 1-22-02)
9.49.050 Possession of graffiti implements prohibited in designated public places.
It is unlawful for any person to have in his or her possession any graffiti implement while in or upon any public facility, park, playground, swimming pool, recreational facility or other public building owned or operated by the city or while in or within one hundred feet of an underpass, bridge abutment, storm drain, or similar types of infrastructure unless otherwise authorized by the city.
(Ord. 2091 § 5, 1-22-02)
9.49.060 Limiting access to graffiti implements—Furnishing to minors prohibited.
It is unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan or otherwise furnish or cause to permit to be exchanged, given, loaned or otherwise furnished, any graffiti implement to any minor without the consent of the parent or other lawfully guardian, which consent shall be given in advance in writing.
(Ord. 2091 § 6, 1-22-02)
9.49.070 Maintenance of graffiti prohibited.
Notwithstanding any other provision of this code, it shall be unlawful and a misdemeanor for any person to cause, permit, aid, abet, maintain, or suffer any graffiti which is visible from any real property (whether privately or publicly owned), public street, sidewalk, alley, or other public right-of-way or other area open to the public to remain on any building, structure, tree, shrub, sidewalk, curb, vehicle, or personal or real property (public or private) owned, possessed, or within the custody or control of such person, or located on real property owned, possessed, or within the custody or control of such person.
(Ord. 2294 § 2, 4-10-11: Ord. 2091 § 7, 1-22-02)
9.49.080 Removal of graffiti by perpetrator.
Any person applying graffiti on city-owned property or on non-city-owned property within the boundaries of the city shall have the duty to remove it within twenty-four hours after notice by the city or private owner of the property involved. Such removal shall be done in a manner prescribed by the police chief, the director of public works or his or her designee or any additional city department had, as authorized by the city council, and may be deemed by the city to satisfy any payment or penalty that might otherwise be imposed. Any person applying graffiti shall be responsible for such removal or for the payment therefore. Failure of any person to so remove graffiti or pay for its removal shall constitute an additional violation of this ordinance. Where graffiti is applied by an unemancipated minor, the parent(s) or legal guardian(s) shall also be responsible for such removal or for the payment therefore. The police department, the director of public works or his or her designee or any additional city department head, as authorized by the city council may convert such payment into equivalent forms of community service hours. Such payments or equivalent forms of community service hours shall be in addition to any other penalties imposed.
(Ord. 2091 § 8, 1-22-02)
9.49.090 Removal of graffiti.
A. Declaration of Nuisance. Pursuant to California Government Code Section 38771, the city council hereby declares the following conditions to constitute a public nuisance:
1. Graffiti or other inscribed material on a building, structure, tree, shrub, sidewalk, curb, vehicle, or personal or real property (public or private) in the city that is visible from any real property (whether privately or publicly owned), public street, sidewalk, alley, or other public right-of-way or other area open to the public;
2. The existence of any surface of a building, structure, tree, shrub, curb, vehicle, or personal or real property (public or private) in the city which has been defaced with graffiti or other inscribed material after removal more than three times in any twelve-month period (hereinafter, “graffiti attracting surface”).
B. Abatement of Nuisance. The city council hereby declares that the maintenance of the public nuisance conditions listed in subsection (A) of this section is subject to abatement pursuant to the provisions of this chapter. Furthermore, the city council authorizes the appropriation and use of public funds to remove graffiti or other inscribed material from publicly or privately owned real or personal property located within the city and to repair, restore, replace, or retrofit publicly or privately owned property within the city that has been defaced with graffiti or other inscribed material that cannot be removed cost effectively, or to otherwise abate graffiti attracting surfaces as defined hereinabove.
1. In instances where a responsible person consents to the abatement of graffiti or graffiti attracting surfaces by city forces, the director of public works, or his designee, is authorized to immediately abate the nuisance.
C. Notice to Abate. In lieu of the procedures outlined in Chapter 9.48 (Building and Property Maintenance), whenever any enforcement officer determines the existence of a graffiti nuisance as defined by and declared in subsection (A) of this section and determines that city employees, representatives, or contact agents may need to abate said nuisance, the enforcement officer shall issue a “notice to abate graffiti nuisance” (hereinafter, “notice to abate graffiti”) to the owner and the entity in possession of or in control of the property on which the nuisance exists, or to any other responsible person, requiring the abatement of the nuisance within two business days of the date of service of the notice to abate graffiti, or within some other reasonable time in connection with a “graffiti attracting surface.”
1. Contents of Notice to Abate Graffiti. A notice to abate graffiti issued pursuant to this chapter shall contain the following provisions:
a. The address of the real property on which the nuisance condition exists;
b. A brief description of the nuisance condition(s);
c. A reference to the law prohibiting or pertaining to the nuisance condition;
d. A brief description of the required corrective actions;
e. A time period and/or schedule in which to complete the nuisance abatement actions (with all required city approvals, permits, and inspections, when applicable) [hereinafter, “compliance period”];
f. The period and manner in which a responsible person may contest the notice to abate graffiti pursuant to this chapter;
g. A statement that if the violations are not abated within the time specified or a timely appeal is not made, such nuisance may be abated by city agents, in the manner provided in the notice. On such occasions, all costs of the abatement shall be assessed against the responsible person(s) and/or the subject property, as a lien or as a special assessment or in any other manner provided by law.
2. Service of Notice to Abate Graffiti.
a. Notice to abate graffiti shall be served upon the responsible persons by either personal delivery or by certified first class mail. The time and date on which a notice to abate graffiti is personally served or is placed in a U.S. Postal Service mail receptacle shall constitute the date of service. Failure of any responsible person to receive a notice to abate graffiti shall not invalidate any action or proceeding pursuant to this chapter.
b. The enforcement officer issuing the notice to abate graffiti to an owner of real property may rely on the owner’s mailing address according to the last equalized assessment roll of the Los Angeles County recorder’s office and/or as listed on any application for a city business license, permit, or other entitlement in determining a service address for the notice to abate graffiti.
D. Method of Abatement. Where graffiti is being abated by the repainting of the surface on which the graffiti exists, the property owner shall use paint that matches the color of the original remaining portions of the structure being painted or as otherwise approved by the director of community development. As it relates to a graffiti attracting surface (as defined by and declared in subsection (A)(2) of this section), a notice to abate graffiti may require, but shall not be limited to, any of the following modifications (or combinations thereof) to said building, structure, tree, shrub, sidewalk, curb, or vehicle (or the property on which said building, structure, tree, shrub, sidewalk, curb, or vehicle exists) as methods of abatement (the costs of which are to be borne by the responsible person):
1. Retrofitting of said surface or structure (at a cost not to exceed ten percent of the assessed value of the property on which the nuisance exists, as indicated on the last equalized assessment roll of the Los Angeles County recorder’s office);
2. Application and/or use of anti-graffiti materials (as approved by the director of community development or his/her designee) to the surface or structure such as anti-etching films or anti-graffiti paints;
3. Installation of landscaping (as approved by the director of community development) so as to screen or to provide a barrier to the surface or structure; and
4. Installation of additional lighting (as approved by the director of community development).
E. Appeal of Notice to Abate Graffiti.
1. Right of Appeal from a Notice to Abate Graffiti.
a. Notwithstanding the provisions of Chapter 9.48, a responsible person receiving a notice to abate graffiti pursuant to the provisions of this chapter, may contest the notice by filing a written request for an appeal and paying any applicable fees (as established by council resolution), with the city clerk within four business days of the date of service of the notice to abate graffiti. A written request for an appeal shall contain the following information:
(1) Name, address, and telephone number of each responsible person who is appealing the notice to abate graffiti (hereinafter, “appellant”), as well as a description of each appellant’s relationship/interest in the real property upon which the city intends to enter and abate a graffiti nuisance;
(2) Address and description of real property upon which the city intends to enter and abate a graffiti nuisance;
(3) Date of notice to abate graffiti being appealed;
(4) Specific action being appealed;
(5) Grounds for appeal in sufficient detail to enable the hearing officer to understand the nature of the controversy; and
(6) The signature of at least one appellant.
b. Failure of the city clerk to receive a timely request for an appeal (including payment of applicable fees) constitutes a waiver of the right to contest a notice to abate graffiti. In this event, the notice to abate graffiti is final and binding.
c. The provisions of this section only apply to instances where the city has elected to establish the right, but not the obligation, to abate graffiti with city agents. In no event does this chapter limit the right of city officials to issue alternative written or oral notices of code violations to responsible persons, or to cause the abatement of graffiti nuisances in a different manner, including, without limitation, by court orders arising from the city’s exercise of its criminal or civil remedies.
2. Appeal Hearing Before City Manager (or Designee).
a. As soon as practicable after receiving the request for an appeal (and in no event more than thirty days from the filing date of the request), the city manager or designee shall schedule and conduct the appeal hearing. The city manager or designee shall provide each appellant with notice of the date, time, and location of the appeal hearing at least five calendar days prior to its occurrence. Service of the notice of hearing shall be made by first class mail, postage prepaid, to each appellant at the address(es) provided on the request for an appeal. The failure of any appellant to receive a properly addressed notice of hearing shall not invalidate any action or proceeding by the city pursuant to this chapter.
b. Appeal hearings are informal, and formal rules of evidence and discovery do not apply. The city bears the burden of proof to establish a graffiti nuisance by a preponderance of the evidence. The notice to abate graffiti and any additional reports/photographs submitted by the enforcement officer shall constitute prima facie evidence of the facts contained in those documents and such enforcement officer is not required to participate in the appeal hearing. The appellant and city officials, as well as any other responsible person, shall have the right to present testimony, witnesses, and evidence at the hearing pertaining to the alleged nuisance or other ground of appeal, as well as to cross-examine any witnesses testifying at the hearing. The appellant and the enforcement officer may represent himself/herself/themselves or be represented by anyone of his/her/their choice. The appellant, or other interested persons, may bring an interpreter to the hearing at his/her/their sole expense. The city may, at its discretion, record the hearing by stenographer or court reporter, audio recording, or video recording.
c. The failure of any appellant to appear at the hearing shall constitute a rescission of the request for an appeal hearing, and the appellant will be deemed to have waived his rights to a hearing. In this event, the notice to abate graffiti shall be deemed final and binding.
d. The city manager or designee may continue the hearing on his/her own motion.
3. Notice of Decision—Order to Abate.
a. Within a reasonable time, not to exceed ten calendar days following the conclusion of the appeal hearing, the city manager or designee shall make any one or more of the following determinations in a written decision (hereinafter, “order to abate”):
(1) A finding and description of each graffiti nuisance at the subject property, or the nonexistence thereof. In the event of a finding of nonexistence of all nuisance conditions contained in the notice to abate graffiti, the city manager or designee shall cancel the notice to abate graffiti;
(2) The name of each person responsible for a graffiti nuisance at the subject property, as well as the name of any appellant who lacks responsibility therefor;
(3) The required corrective action and completion date for each unabated graffiti nuisance;
(4) Any other finding, determination, or requirement that is relevant or related to the subject matter on appeal.
b. The decision of the city manager or designee is final and binding. The order to abate shall also contain the following statement:
This Order to Abate is a final administrative decision of the City, and judicial review of this decision is subject to the time limits set forth in California Code of Civil Procedure sections 1094.6 et seq.
c. A copy of the order to abate shall be served on all appellants by first class mail to the address(es) stated on the request for appeal form. In the event that a responsible person was originally served with a notice to abate graffiti but was not an appellant, such responsible person shall also be served a copy of the order to abate by first class mail to the address(es) at which the notice to abate graffiti was served. Failure of an appellant or other responsible person to receive a properly addressed and mailed order to abate shall not invalidate any action or proceeding pursuant to this chapter.
F. Scope of Abatement. Whenever the city authorizes the use of public funds for the removal of graffiti, the painting or repairing of surfaces containing graffiti, or for the abatement of graffiti attracting surfaces, the city shall not authorize or undertake to provide for the painting or repairing of any more extensive area than that where the graffiti or graffiti attracting surface is located, unless the city manager, or his designee, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid aesthetic disfigurement to the neighborhood or community, or unless a responsible person agrees in writing to pay for the costs of repainting or repairing the more extensive area.
G. Costs of Abatement. The costs of abatement performed by city forces, or agents thereof, shall constitute a personal obligation against the responsible persons (as defined in this chapter) and may be assessed in any, or all, of the following manners:
1. Special assessment or nuisance abatement lien in accordance with the provisions of Chapter 9.48;
2. Graffiti abatement lien against any property owned by a minor or other person (or the parent or guardian of any minor) creating, causing, or committing a graffiti nuisance, as authorized by Section 38773.2 of the California Government Code (or any successor statute thereto);
3. Special assessment against any property owned by a minor or other person (or the parent or guardian of any minor) creating, causing, or committing a graffiti nuisance, as authorized by Section 38773.6 of the California Government Code (or any successor statute thereto);
4. Any other manner provided in the city’s graffiti abatement protocols/policy (in instances where a responsible person consents to the removal of the nuisance by city forces);
5. Pursuant to an order of restitution by a court of competent jurisdiction in accordance with California Penal Code Section 1202.4, California Government Code Section 38772, or any other applicable state or federal law; and
6. Any other manner provided or authorized by law.
(Ord. 2294 § 3, 4-10-11: Ord. 2091 § 9, 1-22-02)
9.49.100 Ease of removal provisions.
A. Any gas, telephone, water, sewer, cable, telephone or other utility operating in the city, other than an electric utility, shall paint their above-surface metal fixtures which are installed after the effective date of the ordinance codified in this chapter with a uniform paint type and color as directed by the director of public works or his or her designee.
B. Encroachment permits issued by the city may, among other things, be conditioned on
1. The permittee applying an anti-graffiti material to the encroaching object or structure of a type and nature that is acceptable to the director of public works 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 structure;
4. The permittee providing 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.
C. In imposing conditions upon conditional use permits, variances, building permits to the extent permitted by this code, or other similar land use entitlement or development or design applications, the city may impose any or all of the following conditions or other similar or related conditions:
1. Applicant shall apply an anti-graffiti material of a type and nature that is acceptable to the director of public works or his or her designee to such of the publicly viewable surfaces to be constructed on the site deemed by the director or designee, to be likely to attract graffiti (“graffiti-attracting surfaces”);
2. Applicant shall grant in writing, the right of entry over and access to such parcels, upon forty-eight hours posted notice, by authorized city employees or agents, for the purpose of removing or painting over graffiti on graffiti-attracting surfaces previously designated by the director of public works or his or her designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land;
3. Applicant, and any and all successors in interest, shall, for a period of two 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. Persons applying for subdivision maps shall, as part of any conditions, covenants and restrictions, covenant, which covenant shall run with the land in a form satisfactory to the city, that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees and structures thereon to city’s satisfaction.
(Ord. 2091 § 10, 1-22-02)
9.49.110 Rewards for information.
A. Pursuant to Section 53069.5 of the Government Code, the city may offer a reward in an amount to be established by resolution of the city council for information leading to the identification and apprehension of any person who willfully damages or destroys any city-owned property, or without the permission of the owner or occupant, any non-city-owned property within the boundaries of the city, by the use of graffiti. In the event of damage to public property, the offender or the parent or legal guardian of any unemancipated minor must reimburse the city for any reward paid. In the event of multiple contributors of information, the reward amount shall be divided by the city in the manner it shall deem appropriate. For the purposes of this section, diversion of the offending violator to a community service program, or a plea bargain to a lesser offense, shall constitute a conviction.
B. Claims for rewards under the section shall be filed with the city in the manner specified by the city council.
C. No claim for a reward shall be allowed unless the city investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied.
(Ord. 2091 § 11, 1-22-02)
9.49.120 Penalties and civil liability of parents.
It is the city’s intent that, pursuant to California Penal Code Section 640.6(a), all acts of graffiti vandalism occurring within the city shall be prosecuted as misdemeanors pursuant to California Penal Code Section 594 et seq., or the ordinance codified in this chapter.
A. Criminal Penalties. Any violations of this chapter shall constitute a misdemeanor offense and subject to the penalties set forth in Chapter 1.56.
B. Additional Penalties. Whenever deemed appropriate, it is the city’s intent to petition a sentencing court to impose the following additional penalties or conditions of any grant or probation, diversion, deferred entry of judgment, or other court supervision (including upon a determination that a minor is to be a ward of the court as a result of committing an act of vandalism or graffiti) upon conviction:
1. Suspension or delay in issuance of driver’s license (pursuant to California Code Section 13202.6);
2. Community service and/or graffiti removal service (pursuant to California Penal Code Sections 640.6 and 1203 et seq., Welfare and Institutions Code Sections 728 and 729.8, and Vehicle Code Section 42001.7);
3. Payment of restitution for the expenses/costs of abatement pursuant to California Penal Code Section 1202.4, California Government Code Section 38772, or other state law.
C. Parental Liability.
1. Pursuant to California Civil Code Section 1714.1(b), where graffiti is applied by an unemancipated minor, the parents or legal guardian of said minor shall be jointly and severally liable for payment of civil damages, including court costs and attorney’s fees, resulting from the misconduct of the minor in an amount not to exceed twenty-five thousand dollars for each such offense or in an amount designated by any amendment to California Civil Code Section 1714.1(b). The parent or legal guardian of said minor shall also be jointly and severally liable for any reward paid pursuant to Section 9.49.110.
2. Pursuant to California Government Code Section 38772, the parent or guardian having custody and control over a minor shall be jointly and severally liable for the expense of any abatement of a graffiti nuisance, and the city may make the costs of abatement a lien against the property of the parent or guardian having custody and control over the minor.
(Ord. 2294 § 4, 4-10-11: Ord. 2091 § 12, 1-22-02)
9.49.130 Violations—Civil remedies available.
A violation of any of the provisions of this chapter shall constitute a nuisance and may be abated by the city through civil process by means of a restraining order, preliminary or permanent injunction, or in any manner provided by law for the abatement of such nuisance.
(Ord. 2091 § 13, 1-22-02)