Chapter 9.28
ANTI-GRAFFITI RULES AND REGULATIONS
Sections:
9.28.010 Findings and declaration.
9.28.050 Sale, possession of graffiti materials.
9.28.070 Graffiti abatement process.
9.28.080 Hearings and appeals.
9.28.090 Summary abatement costs.
9.28.100 Assessment of costs – Lien against property.
9.28.110 Actions to ease removal of graffiti.
9.28.130 Alternative means of enforcement.
9.28.010 Findings and declaration.
A. The Escalon city council finds that graffiti on public and private property contributes to the creation of blight, depreciates the value of property and visually detracts from neighborhoods. Graffiti also encourages other acts of malicious vandalism and generally lowers the quality of life in the city. The city council further finds that graffiti is frequently tied to gang-related or other potential criminal activities and its presence encourages the proliferation of additional graffiti unless promptly abated.
B. In order to promote the health, safety and welfare of the public and community, the ordinance codified in this chapter is adopted to alleviate vandalism and halt the spread of such nuisances as allowed for in Government Code Section 53069.3. It is declared that graffiti is a prohibited obnoxious activity and a nuisance. (Ord. 523 § 1, 2008)
9.28.020 Definitions.
A. “Graffiti” means any act which results in the altering or defacing of any real property through the use of paint, spray paint, markers, paint sticks, glass etching tools, objects or other substances capable of destroying public or private property.
B. “Prohibited obnoxious graffiti” means graffiti having any of the following characteristics deemed to:
1. Insult or incite hatred of or contempt for any racial, religious or ethnic group;
2. Include or make reference to the name of any gang, or words or symbols which are associated with a gang or gangs;
3. Insult or threaten any identifiable individual or group;
4. Have obscene or indecent language or pictures;
5. Be an eyesore to the neighborhood or community or which tends to attract more graffiti.
C. “Unauthorized” means without the explicit consent of the owner or person in possession of, or the party responsible for, the affected private property, or the public official responsible for public property. (Ord. 523 § 1, 2008)
9.28.030 Graffiti prohibited.
A. It is unlawful for any person to scratch, carve, paint, chalk or otherwise apply any unauthorized graffiti on any public or privately owned building, fence, structure or other property.
B. It is unlawful for any person to maintain, permit or allow any graffiti to be placed upon or to remain upon any structure within his or her control, possession or ownership when the graffiti is visible by a person utilizing any public right-of-way in the city such as a highway, road or alley. (Ord. 523 § 1, 2008)
9.28.040 Reporting graffiti.
The city may pay a reward to any person who provides information which leads to the arrest of any person who applies any drawing, inscription, figure or mark, commonly known as graffiti, to a surface of public or private property, as established from time to time by the city manager. The amount of any reward paid in conjunction with this section may be sought from the person arrested and convicted as restitution in addition to any other restitution associated with the removal of graffiti.
A. The person committing the graffiti or, if an unemancipated minor, the custodial parent of the minor, shall be liable for any reward paid pursuant to this section.
B. 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.
C. In the event there are multiple contributors of information, the reward amount shall be divided by the city in the manner it shall deem appropriate. (Ord. 523 § 1, 2008)
9.28.050 Sale, possession of graffiti materials.
A. Sign Required. Any person engaged in the retail sale of aerosol containers of paint and other liquid substances capable of being used to deface property must display at the location of retail sale a legible sign not smaller than eight and one-half inches by 11 inches and clearly visible to employees and customers which states:
Possession by or sale to any individual under the age of 18 years, who is not accompanied by a responsible adult, of any aerosol container of paint or other liquid substance or markers with a marking tip of one-quarter inch or more in width, glass etching tool, paint stick or similar implement capable of defacing property is unlawful.
B. It is unlawful for any person, firm or corporation doing business within the city to store, stock, keep or display for sale or transfer any aerosol spray paint container, or any indelible ink marker pen with a tip exceeding one-quarter inch in width, in an area other than a place that is locked and secure or is otherwise made unavailable to the public and which is accessible only to employees of such businesses.
C. It is unlawful in the city for any person to sell, give, loan, exchange or cause or permit to be sold, given, loaned or exchanged any pressurized can(s) containing any substance commonly known as paint or dye capable of defacing property to any minor under the age of 18 years, unless such person is the parent or legal guardian of such minor. No person under the age of 18 years shall purchase any pressurized can(s) containing paint or dye.
D. It is unlawful for minor persons to have in their possession any aerosol spray containing any substance commonly known as paint capable of defacing property while upon any public highway, street, alleyway, park, playground, swimming pool or other public place, whether such minor is or is not in an automobile, vehicle or other conveyance.
1. This section shall not apply if such minor is in possession of any aerosol spray can in order to perform a task as directed by the minor's parent, guardian, instructor or employer, and if that task would not be a violation of this chapter if conducted by an adult. (Ord. 523 § 1, 2008)
9.28.060 Graffiti removal.
A. Removal of graffiti, upon discovering its existence on private or public property within the city, shall be the responsibility of the chief of police or designee who shall be authorized to provide for the removal of the graffiti in accordance with state law and established city procedures.
1. Private Property. It shall be the responsibility of the property owner, or manager or person in control, to remove graffiti on private property within 48 hours of receipt of notification by the city of the obligation to do so.
2. Public Property. Whenever the public works director, chief of police or their designee determines that graffiti exists upon property owned by the city, it shall be removed within 24 hours or as soon as possible on weekends, but certainly no longer than the required removal standards set for private property owners.
B. Whenever the city becomes aware or is notified and determines that graffiti is located on public or privately owned property viewable from a public place within the city, the city shall be authorized to remove the graffiti or in the case of private property have the property owner assume responsibility for such removal. If a private property owner fails to remove the graffiti within 48 hours, the city shall be authorized to remove the graffiti.
1. The city shall not repair or repaint any more extensive area than that where the graffiti is located unless the chief of police or designee determines in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community unless the responsible party agrees to pay for the costs of repainting or repairing the graffiti and the more extensive area as well.
2. Prior to any graffiti abatement conducted by the city on private property or public property owned by another public agency, the responsible party shall be required to execute a written release, prepared by the city, holding the city harmless and acknowledging that the covering paint may not match the color of the structure upon which it is placed.
C. Any person applying graffiti within the city shall have the duty to remove same in a manner approved by the city within 24 hours after notice by the city or the public or private owner of the property involved. The notice to the person applying graffiti shall be in writing.
D. Form of Notice to Remove. A two-day notice of intention to abate or remove the graffiti shall be mailed by certified mail or hand delivered to the owner(s) of the property or their agents and to any individual(s) who are responsible for causing the graffiti. The notice shall advise that if the graffiti is not removed within the time frame set forth in the notice, the city shall remove the graffiti and assess the costs to the property owner and/or the individual(s) responsible. If a responsible individual is a minor, costs shall be assessed to the parents or guardians of that minor and reimbursement sought for the victim(s) of unauthorized graffiti placement through the Civil Code.
1. Service of notification is complete at the time of deposit in the mail or when personal delivery has been made. The failure of any person to receive such notice shall not affect the validity of any legal proceedings regarding removal of the graffiti. (Ord. 523 § 1, 2008)
9.28.070 Graffiti abatement process.
A. Graffiti Abatement Process. Failure of the property owner, manager or person in control to remove graffiti within the 48-hour period shall constitute a public nuisance and upon discovery of such public nuisance, the city shall notify the owner or manager or person in control that the nuisance shall be abated by the city at private expense.
B. Summary Abatement.
1. Graffiti located on privately owned structures on privately owned property within the city so as to be capable of being viewed by a person utilizing any public right-of-way may be removed by the city at the owner's expense as a public nuisance after service of a notice to abate as set forth in this chapter.
2. Whenever the chief of police or his/her designated representative is appraised of the presence of graffiti located on privately owned real property within the city, the chief of police or his/her designated representative may cause a written notice to abate such graffiti to be served upon the owner of the affected premises as such owner's name and address appears on the last equalized assessment roll.
C. Contents of Notice to Abate. Contents of the notice to abate the graffiti shall be in accordance with Chapter 8.20 EMC; provided, that in the event of any inconsistency respecting the time period for removal of the graffiti, this chapter shall control.
D. Service of Notice. The service of notice to abate the graffiti shall be in accordance with Chapter 8.20 EMC. (Ord. 523 § 1, 2008)
9.28.080 Hearings and appeals.
Hearings and appeals of the order of abatement of graffiti shall be conducted in the same manner provided in Chapter 8.20 EMC. (Ord. 523 § 1, 2008)
9.28.090 Summary abatement costs.
A. The chief of police or his/her representative shall keep an account of the costs and expenses, including all direct and indirect costs and expenses in abating such graffiti, and shall render a written itemized statement of such costs to the person or persons receiving the notice to abate.
B. Such person or persons receiving the notice to abate shall be liable to the city for any and all costs and expenses to the city involved in abating the graffiti. (Ord. 523 § 1, 2008)
9.28.100 Assessment of costs – Lien against property.
A. If payment is not received, the itemized statement may be submitted in writing to the code enforcement officer. Any such report may include the abatement costs, fees and penalties for any number of properties and abatements, whether or not such properties are contiguous.
B. Upon receipt of the itemized report, the code enforcement officer, or his/her designee, shall serve notice of the lien in the same manner as summons in a civil action in accordance with Code of Civil Procedure Section 415.10 et seq. If the owner of record after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in the Escalon Times or other newspaper of general circulation in San Joaquin County. The period of notice commences upon the first day of publication and terminates at the end of the tenth day, including therein the first day. Publication shall be made on each day on which the newspaper is published during the 10-day period.
C. After notice has been served, the lien shall be recorded in the San Joaquin County recorder's office and, from the date of the recording, shall have the force, effect and priority of a judgment lien.
D. The lien shall identify:
1. The amount of the lien;
2. The city as the agency on whose behalf the lien is imposed;
3. The date of the abatement order;
4. The street address, legal description and assessor's parcel number of the parcel on which the lien is imposed; and
5. The name and address of the recorded owner of the parcel.
E. In the event that the lien is discharged, released or satisfied, through either payment or foreclosure, notice of the discharge containing the information specified in subsection D of this section shall be recorded by the code enforcement officer.
F. A lien may be foreclosed by an action brought by the city for a money judgment.
G. The city may recover from the property owner any costs incurred in the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien. (Ord. 523 § 1, 2008)
9.28.110 Actions to ease removal of graffiti.
A. All utilities operating in the city shall paint their aboveground facilities with a uniform paint type and color which meets the approval of the city manager or designee.
B. All encroachment permits issued by the city shall, among other things, be conditioned on:
1. The permittee applying an anti-graffiti material to the encroaching object that is acceptable to the city manager, or his/her designee;
2. The permittee immediately removing any graffiti;
3. The right of the city to remove graffiti or to paint the encroaching object;
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 containing graffiti.
C. In approving tentative subdivision or parcel maps, conditional use permits, variances, or other discretionary land use entitlements, the city may consider imposing any or all of the following conditions, or other similar or related conditions, at the public hearing required by law for approval of the entitlement:
1. The developer shall apply an anti-graffiti material, if possible, of a type and color that is acceptable to the city manager, or his/her designee, to publicly viewable surfaces on the improvements to be constructed on the site deemed by the city manager, or designee, to be likely to attract graffiti (“graffiti-attracting surfaces”).
2. The developer shall grant, prior to sale of any of the parcels comprising said map, the right of access to such parcels, upon 48 hours' posting of notice, to the city for the purpose of removing or painting over graffiti from graffiti-attracting surfaces previously designated by the city manager or designee, and the right to remove such graffiti.
3. The developer shall, for a period of two years after the sale of the developer's final lot, provide the city with sufficient matching paint and/or anti-graffiti material upon demand for use in painting over or removal of designated graffiti-attracting surfaces.
4. The developer shall covenant, either as a part of the conditions, covenants and restrictions, or as separate covenants recorded against individual lots, prior to sale of same, such covenant to run with the land and be for the benefit of the city, in a form satisfactory to the city, that the owner of the lot(s) shall immediately remove any graffiti placed thereon. (Ord. 523 § 1, 2008)
9.28.120 Prevention.
A. Any applicant for design review approval, conditional use permit, special use permit, unclassified use permit, development agreement, or other form of development or building permit shall, to the extent deemed feasible by the city manager, or his/her designee, have designed any structures visible from any public place in such a manner to consider prevention of graffiti, including, but not limited to, the following:
1. Use of a protective coating to provide for the effective and expeditious removal of graffiti;
2. Use of additional lighting;
3. Use of nonsolid fencing;
4. Use of landscaping designed to cover large expansive walls such as ivy or similar clinging vegetation;
5. Use of architectural design to break up long continuous walls or solid areas.
B. Retrofitting Existing Graffiti-Attracting Surfaces – Nonresidential Structures. The following requirements may be incorporated in any order issued during an abatement hearing:
1. The owner of the property on which is located a surface of a structure other than residential which has been defaced with graffiti more than five times in 12 months, or the immediate area surrounding said surface, shall permit the city to enter upon and make modifications thereto, which modifications shall include such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti or as necessary to permit more convenient or efficient removal thereof.
2. The owner of any surface of a structure on a parcel of land placed in any land use other than residential which has been defaced with graffiti more than five times in 12 months, or the immediate area surrounding said surface, shall retrofit, at the cost of the property owner of said lot, such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit the convenient or efficient removal thereof. In exercising the authority hereunder, the city may not impose a cost on the property owner greater than three times the cost of one year's expense to the property of graffiti removal. (Ord. 523 § 1, 2008)
9.28.130 Alternative means of enforcement.
Nothing in this chapter shall be deemed to prevent the city council from authorizing the city attorney to commence any other available civil or criminal proceeding to abate a public nuisance under applicable provisions of state law as an alternative to the proceedings set forth in this chapter. (Ord. 523 § 1, 2008)
9.28.140 Severability.
If any provision, clause, sentence or paragraph of this chapter, or application thereof to any person or circumstances, be held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or applications and, therefore, the provisions of this chapter are declared to be severable. (Ord. 523 § 1, 2008)