Apple Valley Municipal Code Ch. 11.82 Graffiti Abatement

The Town Council of the Town of Apple Valley finds graffiti on public or private property a blighting element which leads to depreciation of the value of property which has been targeted by such vandalism and depreciates the value of the adjacent and surrounding properties to the extent that graffiti creates a negative impact upon the entire Town.

The Town Council finds and determines that graffiti is obnoxious and a public nuisance, and must be eliminated by means of prevention, education and abatement to avoid the detrimental impact of such graffiti on the Town and its residents, and to prevent the further spread of graffiti.

The purpose and intent of the Town Council, through the adoption of this Chapter, is to provide additional enforcement tools to protect public and private property from acts of vandalism and defacement. It is the further intent of the Town Council, through the adoption of this Chapter, to provide notice to all of those who disregard the property rights of others, that the law enforcement agencies of the Town, the Police Department, Code Compliance Section and the Town Attorney, will strictly enforce the law and vigorously prosecute those persons engaging in violations of this Chapter.

The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:

(a) Aerosol paint container means any aerosol container which is adapted or made for the purpose of spraying paint or other substance capable of defacing property.

(b) Felt-tip marker means any tipped style marker or similar implement with a tip which, at its broadest width, is one-eighth in., or greater.

(c) Graffiti means any unauthorized inscribing, word, figure, or design which is marked, etched, scratched, drawn, painted, pasted or otherwise affixed to or on any surface, regardless of the nature of the material of that structural component, to the extent the same was not authorized in advance by the owner thereof, or despite advance authorization, is otherwise deemed by the Town Council to be a public nuisance.

(d) Graffiti implement means an aerosol paint container, a felt tip marker, or any other device containing any solution or substance capable of being used to leave a visible mark at least one-eighth of an inch in width upon any surface.

(a) No person shall place graffiti or other writing upon any public or privately owned tree or structures including, but not limited to, buildings, walls, fences, poles and signs, ("structures" hereinafter in this Chapter) located within the Town. It shall also be unlawful for any person to apply or affix any adhesive backed label, sticker, "bumper sticker" or similar item, to any tree or structure not owned or lawfully possessed by such person.

(b) No person owning or otherwise in control of any real property within the Town shall permit or allow any graffiti to be placed upon or remain on any structure located on such property.

Possession of any graffiti implement by any person under the age of 18 years with the intent to deface property while upon public or private property shall be unlawful unless that minor has received the consent of the owner of such private property whose consent to such possession and presence is given in writing in advance or unless that minor is accompanied by and under the supervision of a parent or legal guardian. This provision shall not apply to the possession of felt tip markers by minors 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 formally requires possession of such 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.

Possession of any graffiti implement by any person under the age of 18 years with the intent to deface property while in any public park, playground, swimming pool, recreational facility, or while in or within ten ft. or an underpass, bridge abutment, storm drain, or other similar type of infrastructure not normally used by the public shall be unlawful except as may be authorized by the Town or unless that minor is accompanied by and under the supervision and control of a parent or legal guardian.

(a) Furnishing of graffiti implements to minors prohibited. It shall be 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, any graffiti implement to any minor without the consent of the parent or lawful guardian which consent shall be given in advance in writing.

(b) Display requirements. No person or business engaged in a commercial enterprise shall display for sale, trade or exchange, any graffiti implement except in an area from which the public shall be securely precluded without employee assistance. Two such acceptable methods for displaying graffiti implements for sale shall be by containment in (1) a completely enclosed cabinet or other storage device which shall be permanently affixed to a building or structure, and which shall, at all times except during access by authorized representatives, remain securely locked; or (2) in an enclosed area behind a sales or service counter from which the public is precluded from entry. Nothing herein shall relieve such person or business entity from, at all times, complying with the requirements of Penal Code § 594.1(c) by posting signs as described therein.

(c) Storage requirements. No person or business engaged in the business of selling, providing or trading graffiti implements shall store any graffiti implement except in either:

(1) A completely enclosed room which shall, at all times except during access or actual occupancy by the owner or an authorized adult representative of the owner, remain securely locked; or

(2) In a completely enclosed cabinet or other storage device which shall be permanently affixed to a building or building structure, and which shall, at all times except during access by the owner or an authorized adult representative of the owner, remain securely locked. For purposes of this Section, an owner or authorized representative of the owner, shall be deemed to actually occupy a room even during brief periods of absence if the room is contained within a larger structure which is occupied by the owner.

(d) Civil responsibility for damages for wrongful display or storage. Any person who displays or stores or permits the display or storage of any graffiti implement in violation of the provisions of this Section shall be personally liable for any and all costs, including attorney's fees and court costs, incurred by any party in connection with the removal of graffiti, the repair of any property containing graffiti, or such party's prosecution of a civil claim for reimbursement or damages resulting from such graffiti removal or property repair, arising from the use by any person or such wrongfully displayed or stored graffiti implement in violation of the provisions of any of the California Penal Code sections or in violation of this Chapter.

(a) Right of Town to require removal. It is unlawful for any person who is the owner or who has primary responsibility for control, of property or who has primary responsibility for the repair or maintenance of property ("Responsible Party") hereinafter in this Section, to permit said property to be defaced with graffiti for a period of seven days after service by the Town by first class mail of notice of same, unless (1) said person shall demonstrate by a preponderance of evidence that he or she does not have the financial ability to remove the defacing graffiti; or (2) it can be demonstrated that the Responsible Party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it shall be unlawful to permit such property to remain defaced with graffiti for a period of seven days after service by first class mail of notice of same.

(b) Declaration of nuisance.

(1) Graffiti as a nuisance. The Town Council hereby declares and finds graffiti to be a nuisance subject to abatement according to the provisions and procedures herein contained and as authorized by Government Code § 38773 et seq.

(2) Graffiti attracting surface as a nuisance. The existence of any surface of a structure on any privately owned parcel of land which has been defaced with graffiti after removal more than five times in 12 months is hereby deemed to be a nuisance, and may be abated by the Town by order of the Town Council requiring modifications thereto, or to the immediate area surrounding same. Such modifications may include, but are not limited to: Retrofitting of such surfaces at the expense of the property owner(s) of said lot, with such features or qualities as may be established by the Town as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient, expedient or efficient removal of graffiti therefrom.

(c) Right of Town to remove.

(1) Use of public funds. Whenever the Town becomes aware, or is notified and determines that graffiti is so located on public or privately owned property viewable from a public or quasi-public place within the Town, the Town shall be authorized to use public funds for the removal of same, or for the painting or repairing of same, but shall not authorize or undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located, unless the Town Manager or his/her 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 the Responsible Party agrees to pay for the costs of repainting or repairing the more extensive area.

(2) Right of entry on private property.

(a) Securing owner consent. Prior to entering upon private property or property owned by a public entity other than the Town, for the purposes of removal of graffiti, the Town shall attempt to secure the consent of the Responsible Party, and a release of the Town from liability for private or public property damage.

(b) Failure to obtain owner consent. If a Responsible Party fails to remove the offending graffiti within the time herein specified, or if the Town shall have requested consent to remove or paint over the offending graffiti and the Responsible Party shall have refused consent for entry on terms acceptable to the Town consistent with the terms of this Section, the Town may commence abatement and cost recovery proceedings for the removal of the graffiti pursuant to the nuisance abatement authority granted by Government Code § 38773 et seq., which authority includes the recovery of all costs incurred by the Town in abating graffiti and recordation of lien as to affected property.

(d) Ease of removal provisions.

(1) Common utility colors and paint-type. Any gas, telephone, water, sewer, cable, electrical and other utility operating in the Town, shall paint their freestanding, above-surface metal fixtures which are installed after the effective date of this Chapter, with a uniform paint type and color as directed by the Town Manager or his/her designee.

(2) Conditions on encroachment permits. Encroachment permits issued by the Town may, among other items, be conditioned on (1) [the] permittee applying an anti-graffiti material to the encroaching object or structure of a type and nature which is acceptable to the Town Manager or his/her designee; (2) the immediate removal by the permittee of any graffiti; (3) the right of the Town to remove graffiti or to paint the encroaching object or structure; (4) the permittee providing the Town with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object or structure containing graffiti.

(3) Conditions on discretionary approvals. In imposing conditions upon conditional use permits, variances, building permits or other similar land use entitlements or development or design applications, the Town may impose graffiti removal requirements or any or all of the following conditions, or other similar or related conditions:

(A) Use of anti-graffiti material. Applicant may be required to apply an anti-graffiti material or provide a landscape design of a type and nature which is acceptable to the Town Manager or his/her designee to such of the publicly viewable surfaces to be constructed on the site deemed by the Town Manager or his/her designee to be likely to attract graffiti ("graffiti attracting surfaces" hereinafter in this Section);

(B) Right of access to remove graffiti. Applicant shall grant, in writing, the right of entry over and access to such parcels, upon 48 hours posted notice, by authorized Town employees or agents, for the purpose of removing or "painting over" graffiti on graffiti attracting surfaces previously designated by the Town Manager or his/her designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land;

(C) Supply Town with graffiti-removal material. Applicant, and any and all successors in interest, shall, for a specified period of years after approval, provide the Town with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of designated graffiti attracting surfaces;

(D) Owner to immediately remove graffiti. 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 Town, that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees and structures thereon to the Town's satisfaction.

(a) Reward authority.

(1) Pursuant to Government Code § 53069.5, the Town does hereby offer a reward in the amount as may be set by resolution of the Town Council, for the apprehension of, or information leading to the identity of, and the apprehension of or conviction of any person for violation, within the Town, of Penal Code §§ 594 or 594.3 through the use of graffiti, of Penal Code §§ 640, 640.5, 640.6 or Sections 11.82.030, 11.82.040, or 11.82.050 of this Chapter. In the event of multiple contributions of information, a reward amount shall be divided by the Town in the manner it shall deem appropriate. For the purposes of this Subsection, diversion of the violator to a community service program, or plea bargain to a lesser offense, shall constitute a conviction.

(2) Claims for rewards under this Section shall be filed with the Town. Each claim shall:

(A) Specifically identify the date, location and kind of property damaged or destroyed;

(B) Identify by name the person who was convicted;

(C) Identify the court and the date upon which the conviction occurred.

(3) No claim for a reward shall be allowed by the Town Council unless the Town investigates and verifies the accuracy of the claim and determines the requirements of this Section have been satisfied.

(4) The person committing the graffiti-vandalism, and if an unemancipated minor, then the parent or lawful guardian of said minor, shall be civilly liable for any reward paid pursuant to this Section pursuant to the provisions of Government Code § 53069.5.

(b) Reimbursement of cellular phone costs.

(1) The Town shall reimburse to any person; reporting by means of a cellular phone an act of graffiti vandalism presently occurring within the Town, the amount of the actual phone charges, exclusive of taxes, incurred by said person.

(Ord. 144, 09-27-94)

(a) Criminal penalties. Any person who violates any provision or who fails to comply with any of the requirements of this Chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished in accordance with the provisions of Sections 1.01.200 through 1.01.230 of Chapter 1.01 of Title 1 of this Code, and by the performance of community service in the form of graffiti clean-up to the maximum extent permitted by Penal Code § 594 and/or any other such provision of law.

(b) Additional penalties available. Whenever appropriate, the Town intends to petition a sentencing court to impose the following additional penalties upon conviction:

(1) Litter or graffiti clean up pursuant to Vehicle Code § 42001.7, upon conviction of violation of Vehicle Code §§ 23111, 23112, or 23113(a).

(2) Suspension or delay of issuance of a driver's license pursuant to Vehicle Code § 13202.6 upon a graffiti-vandalism conviction.

(3) Performance of community service, including graffiti removal service by any minor determined to be a ward of the court as a result of committing a vandalism-related offense in the Town of Apple Valley, as provided in Welfare and Institutions Code § 742.16.

(4) Performance of community service, including graffiti removal service of up to 100 hours by any minor determined to be a ward of the court as a result of committing a drug related offense in the Town of Apple Valley, as provided in Welfare and Institutions Code § 729.8.

(c) It is the Town's further intent that, pursuant to Penal Code § 640.6(a), all acts of graffiti-vandalism occurring within the Town shall be prosecuted as misdemeanors pursuant to Penal Code § 594 et seq., or this Chapter.

(d) Pursuant to Civil Code § 1714.1(b), any parent or legal guardian whose minor child possesses a graffiti implement shall be personally liable for any and all costs to any person or business incurred in connection with the removal of graffiti caused by said minor child, or by said graffiti implement, and for all law enforcement costs, Town staff costs, attorneys' fees and court costs incurred in connection with the civil prosecution of any claims for damages or reimbursement up to the sum of $25,000.00.

(e) Pursuant to Government Code § 38773.6, the Town may abate any nuisance resulting from the defacement by a minor of property by another by graffiti or other inscribed materials in accordance with Section 11.82.070(a), (b), (c) and (d). All costs of abatement and administrative costs including law enforcement costs, Town staff costs, and attorney fees shall be a special assessment against any parcel of land owned by any minor or by the parent or guardian having custody and control of the minor. The costs of assessment after confirmation by resolution of Town Council, and after recording shall constitute a lien on said property in the amount of said assessment and shall be collected at the same time and in the same manner as regular bills of taxes levied against said property is collected and be subject to the same penalties and procedure and sale in case of delinquency. All laws applicable to the levy, collection and enforcement of real property taxes shall be applicable to the special assessment.

(Ord. 131, 01-11-94; Ord. 151, 06-27-95; Ord. 156, 11-14-95; Ord. 224, 6-13-00)