Division XII. Graffiti

Chapter 9.100


9.100.010    Title.

9.100.020    Purpose.

9.100.030    Definitions.

9.100.040    Possession by minors – Prohibited.

9.100.050    Furnishing to minors – Prohibited.

9.100.060    Possession in designated places – Prohibited.

9.100.070    Application of graffiti – Prohibited.

9.100.080    Responsibility of parents and others.

9.100.090    Penalties for violation.

9.100.100    Graffiti removal and prevention program.

9.100.110    Reward.

9.100.120    Notice of violation – Compliance by owner.

9.100.130    Removal of graffiti.

9.100.140    Service of notice.

9.100.150    Graffiti removal by city.

9.100.160    Graffiti prevention – Conditions.

9.100.170    Severability.

9.100.010 Title.

This chapter shall be known as “graffiti abatement.” (Ord. 445, 2003)

9.100.020 Purpose.

The city council does hereby find that:

A. The increase of graffiti on both public and private buildings, structures, and in other places creates a condition of blight within the city, which can result in the actual or perceived deterioration of property values, business opportunities, and enjoyment of life for persons using adjacent and surrounding properties.

B. The continued existence of graffiti is inconsistent with the city’s standards for property maintenance, crime prevention, and aesthetic standards; and, unless graffiti is quickly removed from public and private properties, other properties soon become the target of graffiti vandalism.

C. Graffiti, defacement and other similar acts of vandalism are inimical and destructive of the rights of owners and tenants, and to the values of public and private property, and thus are injurious to the community welfare.

D. The presence of graffiti and graffiti-attracting surfaces within the city are public nuisances.

E. The purposes of this chapter are to protect the public welfare by prohibiting graffiti vandalism, prescribing penalties for violation of its provisions, establishing a graffiti abatement program as authorized by Government Code Section 53069.3, and establishing a cost-recovery program to assist the city in the eradication of graffiti. (Ord. 445, 2003).

9.100.030 Definitions.

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

A. “Aerosol paint container” means any container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint or other similar substances capable of defacing property.

B. “City property” means any property owned by the city of Holtville.

C. “Defacement” means the intentional altering of the physical shape or appearance of property.

D. “Felt-tip marker” means any indelible marker or similar implement with a tip which at its broadest width is greater than one-eighth inch, and contains an ink that is not water-soluble.

E. “Glass etching tool” means a masonry or glass drill bit, a carbide drill bit, a glass cutter, a grinding stone, an awl, a chisel, a carbide scribe or any other device which may be used to mark glass or other surfaces.

F. “Graffiti” means any inscription, word, figure or design marked, etched, scratched, drawn or painted upon the surface of a building, structure, tree, shrub, fence, walkway, light standard, sidewalk, or any other facility, regardless of the material used on such surface, without the written permission of the owner, or owner’s representative, through the use of a graffiti implement or aerosol paint. “Graffiti” does not include markings upon any surface for utility connections or service or for construction activities authorized by law or regulation.

G. “Graffiti-attracting surface” means any surface of a building, fence, or other structure on a parcel of land which has been defaced with graffiti after removal more than five times during any continuous period of six months.

H. “Graffiti implement” means any implement capable of marking a surface to create graffiti, including but not limited to a spray actuator, paint sticks, felt-tip markers, or glass etching tools; except “graffiti implement” does not mean an aerosol paint container, the furnishing, sale and possession of which is regulated by Penal Code Section 594.1.

I. “Graffiti removal authorization” means a written agreement executed by a responsible person or owner’s representative that authorizes the city to remove graffiti and releases and holds harmless the city, its officers, agents, contractors and employees from liability.

J. “Minor” means a person less than the age of 18.

K. “Owner’s representative” means any person or entity expressly authorized by the owner of any property to permit another person to place inscriptions, works, figures, or designs upon such property, or any person or entity in lawful possession of any property, whose right of possession includes the authority to permit or allow inscriptions, words, figures or designs to be placed upon such property.

L. “Paint stick” means a 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, leaving a mark of at least one-eighth of an inch in width, visible from a distance of 20 feet, and not water-soluble.

M. “Public place” means any park, playground, swimming pool, or similar recreational facility, other than a highway, street, alley or way, posted with a sign placed in a reasonable location stating it is a misdemeanor under Penal Code Section 594.1 to possess an aerosol container of paint in that area without valid authorization, and stating the infractions contained in this chapter.

N. “Public property” means any property, other than a highway, street, alley or way, owned by the United States, the state of California, the county of Imperial, a school district operating under the laws of the state of California, or any public agency except the city of Holtville.

O. “Responsible person” means any person who owns, controls, or possesses property or who has primary responsibility for the repair or maintenance of property.

P. “Spray actuator” means any object, including a spray tip, nozzle and button, which is capable of being attached to an aerosol paint container for the purpose of spraying the substance contained therein. (Ord. 445, 2003).

9.100.040 Possession by minors – Prohibited.

A. It shall be unlawful for any minor to have in his or her possession any graffiti implement while upon city property, public property, any public place, or upon private property, without the consent of the owner of such property whose consent has been given in advance and such consent has been given while such person was in the possession of a graffiti implement.

B. The prohibition imposed in subsection A of this section shall not apply when the minor is attending, or traveling to or from a school at which the minor is enrolled, if the minor is participating in a class at said school, which has, as a written requirement of said class, the specific use of felt-tip markers, paint sticks, or other graffiti implements for educational purposes. (Ord. 445, 2003).

9.100.050 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 or permit to be exchanged, given, loaned or otherwise furnished a any graffiti implement to any minor without the presence of the parent, or other lawfully designated custodian of the person, which written custodial consent shall be given in advance. (Ord. 445, 2003).

9.100.060 Possession in designated places – Prohibited.

A. Pursuant to Penal Code Section 594.1, no person, other than an officer, employee, or agent of the city of Holtville, is authorized to carry on his or her person and in plain view to the public an aerosol container of paint while in any posted public facility, park, playground, swimming pool, or other recreation area within the city.

B. The city manager at each location specified under subsection A of this section shall cause to be posted signs stating that it is a misdemeanor under Penal Code Section 594.1 to possess aerosol paint containers in that specific public facility, park, playground, swimming pool, or other recreational area within the city.

C. It is unlawful for any person, other than an officer, employee or agent of the city, to carry any graffiti implement on city property or in any public place within the city.

D. It is unlawful for any person to carry any graffiti implement on public property, without the prior written authorization of the owner of such public property. (Ord. 445, 2003).

9.100.070 Application of graffiti – Prohibited.

A. It is unlawful for any person to apply graffiti markings upon any surface or real or personal property within the city, whether such property is publicly or privately owned.

B. A violation of this section shall be prosecuted under Section 594, 640.5, 640.6, or 640.7 of the Penal Code of the State of California, whichever is applicable.

C. It is the intent of the city council that a person convicted of a violation of Penal Code Section 594 shall, in addition to the penalties imposed pursuant to that section, be penalized pursuant to the provisions of Vehicle Code Section 13202.6, involving suspension or delay in driving privileges. (Ord. 445, 2003).

9.100.080 Responsibility of parents and others.

It is unlawful for any person to assist, aid, abet, allow, permit, or encourage another to violate any provision of this chapter, by word, overt act, failure to act, or by lack of supervision and control over minors. (Ord. 445, 2003).

9.100.090 Penalties for violation.

A. It is the intent of the city council that violators of this chapter be prosecuted to the maximum feasible extent under the Penal Code of the State of California, where applicable.

B. It is further the intent of the city council that any community service ordered by a court for any violation of Penal Code Section 594, 640.5, 640.6, or 640.7 for vandalism or graffiti-related offenses shall, at a minimum, be for a period of 40 hours, unless state law establishes a lower maximum for that specific crime.

C. It is further the intent of the city council that at least one-half of the hours of community service ordered by a court upon conviction under the Penal Code, for any violation of this chapter, of a minor shall be performed in the presence of, and under the direct supervision of, the minor’s custodial parent or legal guardian, to the extent permitted by law.

D. Persons ordered to perform “community service” under the direction of officials of the city of Holtville shall be assigned generally to graffiti abatement and litter control.

E. Unless otherwise specified by law, any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:

1. A fine not exceeding $100.00 for a first violation.

2. A fine not exceeding $200.00 for a second violation of this chapter within one year.

3. A fine not exceeding $500.00 for each additional violation of this chapter within one year.

Pursuant to Section 1714.1(b) of the Civil Code of the State of California, 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 resulting from the misconduct of the minor in an amount not to exceed $10,000 for each such offense. (Ord. 445, 2003).

9.100.100 Graffiti removal and prevention program.

A. Pursuant to Government Code Section 53069.3, the city manager is authorized to use public funds, if necessary, for graffiti removal on public and private property as part of a graffiti removal and prevention program. Such program shall provide for the removal of graffiti or painting or repairing of graffiti-damaged property.

B. The program established hereunder shall not authorize or undertake to provide for the painting or repair of any more extensive an area than where graffiti is located on any property, unless the city manager, or designee, finds and declares 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, and the responsible person agrees to pay for the costs of repainting or repairing the more extensive area.

C. The program will include a component to assist property owners who are unable to pay for the costs of removal or repainting of graffiti-damaged surfaces, as provided in this chapter.

D. The program established hereunder may include, but shall not be limited to, use of city employees, volunteers, work teams from the California Youth Authority and state prisons located within Imperial County, and persons performing court-ordered community service. The city may also contract for the performance of graffiti removal services where necessary.

E. A financial account shall be designated for the graffiti removal and prevention program. Any proceeds from fines and damages repaid which are collected by the city for graffiti-related offenses shall be deposited in this account, and the account shall also accommodate financial contributions and donations of materials and supplies to aid in the prevention or abatement of graffiti within the city.

F. In order to have a minimum adverse effect on the aesthetics of the community, the program established shall provide that at least three colors of paint be available for use to repaint graffiti-damaged surfaces. The city may use other available techniques, where appropriate, to eradicate graffiti from public and private properties.

G. The program shall also include a long-term program to minimize the presence of or the creation of new graffiti-attracting surfaces within the city.

H. It is recognized that it may not be possible, given available resources, to eliminate graffiti from property within the city; nevertheless, the city shall make all feasible efforts to do so under the graffiti-removal and prevention program. (Ord. 445, 2003).

9.100.110 Reward.

A. Pursuant to Section 53069.5 of the Government Code, the city manager is authorized to offer a reward of $500.00 for information leading to the arrest and conviction of any person in violation of Section 594 of the Penal Code by the use of graffiti.

B. The person committing the graffiti vandalism shall be liable for the reward paid pursuant to this section.

C. Although no law enforcement officer, municipal officer, official or employee of the city shall be eligible for the payment of any reward established herein, the person committing the graffiti vandalism shall still be liable for the amount of the reward authorized under subsection A of this section; and said moneys shall be deposited in the city’s account designated for graffiti removal and prevention. (Ord. 445, 2003).

9.100.120 Notice of violation – Compliance by owner.

A. Whenever the city manager, or designee, determines that graffiti exists on any surface of any property within the city, which graffiti is visible from the street or other public or private property, the city shall notify the responsible person, and owner’s representative, if applicable, of the existence of graffiti as a nuisance subject to abatement pursuant to this chapter.

B. The notice of violation and order to abate shall be as provided in HMC 9.100.140.

C. A responsible person may file a written objection to the notice of abatement within seven days of the date of the notice; and, in such cases, the city manager shall appoint a hearing officer to review whether sufficient grounds existed to determine that the existence of graffiti vandalism constituted a nuisance as defined in this chapter. A hearing shall be conducted within seven days of the date of the appeal; and, upon the conclusion of the hearing, the hearing officer shall decide whether such notice was properly issued; and the hearing officer may extend, for a period of up to seven days, the deadline for compliance with the notice to abate. The decision of the hearing officer that a nuisance exists, and the date of required abatement, shall be final. (Ord. 445, 2003).

9.100.130 Removal of graffiti.

It shall be unlawful for any responsible person or owner’s representative to permit property that has been defaced with graffiti to remain so defaced for a period of 15 days after having been given a notice of the violation unless the city manager, or designee, determines that either of the following conditions exists:

A. The responsible person or owner’s representative can establish a lack of financial ability to remove the defacing graffiti. In such cases, the responsible person or owner’s representative shall execute a graffiti removal authorization agreement; and the city shall have the right to remove the graffiti.

B. The responsible person or owner’s representative can establish that there exists an active program for the removal of graffiti and has scheduled its removal. In such cases, it shall be unlawful to permit the property that has been defaced to remain defaced longer than the time agreed upon by the city manager, or designee, as being just and reasonable, but not more that 21 days after the notice of violation has been given. (Ord. 445, 2003).

9.100.140 Service of notice.

A. The notice of violation and order to abate graffiti shall be served upon the owner(s) of the affected property, as such owner’s name and address appears on the latest equalized property tax assessment rolls of the county of Imperial. In addition, if there is a commercial tenant or tenants using the premises, the notice shall also be served on said tenant or tenants. If there is no known address for the owner, the notice shall be sent in care of the property address.

B. The notice of violation and order to abate graffiti as a nuisance may be served by either of the following:

1. Personal service on the owner(s), responsible person, or owner’s representative.

2. By registered or certified mail addressed to the owner at the last known address of said owner. If this address is unknown, the notice will be sent to the property address. In addition, where the property is occupied, a copy of the notice will be delivered to the occupant. (Ord. 445, 2003).

9.100.150 Graffiti removal by city.

A. Upon failure of a responsible person or owner’s representative to remove the graffiti as required by the notice to abate issued pursuant to this chapter, the city manager, or designee, shall attempt to secure a graffiti removal authorization agreement.

B. If a responsible person or owner’s representative fails to remove the offending graffiti within the time period specified by the notice to abate, or any determination made by the city pursuant to HMC 9.100.130, or if the responsible person refuses to grant consent to the city for entry onto the property by a graffiti removal authorization agreement, the city manager, or designee, may commence abatement and cost-recovery proceedings for the removal of graffiti.

C. Upon failure by any person to comply with the provisions of subsection B of this section, the city manager, or designee, is authorized and directed to cause the graffiti to be removed as soon as practicable by the use of city employees, volunteers, community service workers, or contractors; and the city and its agents are expressly authorized to enter upon the premises for the purposes of graffiti abatement. All reasonable efforts to minimize damage from such entry shall be taken, and any paint used to remove graffiti shall be as close as practicable to the background color(s).

D. When graffiti has been abated by the city due to the refusal of a responsible person to do so, or failure to execute a graffiti removal authorization, the property owner shall reimburse the city for the total cost of the removal of the graffiti, which costs shall include labor, materials, preparation of specifications and contracts, and inspections.

E. The city manager, or designee, shall furnish the property owner with an itemized statement of the city’s costs to remove the graffiti. The property owner may appeal the amount of such proposed assessment of costs within seven days of the date of the statement by filing a written appeal with the city manager. If no such appeal is filed, the amount billed the property owner shall be presumed correct, due and payable. If an appeal is filed, the city shall appoint a hearing officer to review the statement of costs and review any evidence or information provided by the property owner that such costs are not correct or reasonable, such review to be completed within 10 days from the date of appeal. The hearing officer shall make a decision to uphold the statement or modify it based on the evidence and information presented during the review. The written decision of the hearing officer shall be final and conclusive, and a copy of such decision shall be furnished to the property owner.

F. If the amount billed to the property owner has not been paid within 60 days from the date of the city’s bill, the city manager, or designee, may seek to recover the city’s expenses through an action in a court of competent jurisdiction, or by lien against the property pursuant to HMC 8.24.140. (Ord. 445, 2003).

9.100.160 Graffiti prevention – Conditions.

The city and its officers and employees may exercise any of the following actions, without limitation, to minimize the continuing presence of graffiti with the city:

A. Work with property owners to retrofit existing graffiti-attracting surfaces with such features or material as may be necessary to reduce the attractiveness of such surfaces for graffiti, or to permit more convenient or efficient removal of graffiti.

B. Require that all gas, electric, telephone, water, sewer, cable, telephone, or other utility operating within the city paint their above-surface metal fixtures with a uniform paint type and color approved by the director of public works.

C. Impose conditions on the issuance of encroachment permits to minimize the creation of graffiti, or to facilitate its removal if such vandalism occurs.

D. Impose conditions on tentative parcel maps, permits, variances, or other land use actions subject to regulation by the city, which conditions may included any of the following:

1. Application of anti-graffiti material to publicly viewable surfaces of improvements to a site.

2. Use of non-solid fencing, where appropriate.

3. Use of landscaping plants designed to cover large expansive walls, or make them less accessible to graffiti vandals.

4. Use of architectural design to break up long, continuous walls or solid areas.

5. Use of additional lighting in areas likely to be the target of graffiti vandals.

6. Grant of a right of continuing access to the city for parcels for the purposes of removal of graffiti from graffiti-attracting surfaces.

7. Supply to the city for a period of two years after the sale of the final lot within any development sufficient paint and/or other anti-graffiti material for use within the development to remove graffiti. (Ord. 445, 2003).

9.100.170 Severability.

If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstance is held to be invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application; and to this end the provisions of this chapter are declared to be severable. (Ord. 445, 2003).