Arvin Municipal Code Ch. 9.29 Graffiti

Footnotes:

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Editor's note— Ord. No. 395, § 2, adopted Apr. 5, 2011, amended Ch. 9.29, §§ 9.29.010—9.29.080 in its entirety to read as herein set out. Former 9.29, §§ 9.29.010—9.29.080, pertained to the same subject matter. See Ordinance List and Disposition Table for complete derivation.

Graffiti on public and private property is a blighting factor which not only depreciates the value of the property, but also the value of the adjacent and surrounding areas. Government Code Section 53069.3 authorizes a city to enact ordinances to provide for use of city funds to remove graffiti from public and privately owned permanent structures located within the city. Government Code sections 38772, 38773.2, and 38773.6, authorize cities to abate graffiti nuisances at the expense of any person, including a minor, who creates the graffiti. The city council finds that graffiti or related inscribed materials is obnoxious and a nuisance and, pursuant to Government Code sections 53069.3 and 38772 et. seq., authorizes that a program be instituted allowing for the use of city funds to remove graffiti on public and private property and to recover costs from persons who create the graffiti. It is the city council's further intent to provide for the prohibition of the placement of graffiti on public or private property as herein set forth.

(Ord. No. 395, § 2, 4-5-2011)

"Graffiti" means the unauthorized inscribing, spraying of paint or marking of ink, chalk, dye or other similar substances on public or private buildings, structures and places.

(Ord. No. 395, § 2, 4-5-2011)

A. It is unlawful for any person to paint, chalk or otherwise apply graffiti or inscribing materials on public or privately owned structures located on public or privately owned real property within the city.

B. It is unlawful for the owner of any private property to permit graffiti or other inscribed material to remain so as to be capable of being viewed by a person utilizing any public right-of-way in the city, such as a road, parkway or alley, providing the city has given the property owner written notice to remove the graffiti within a period of ten (10) calendar days, and the ten-day period has elapsed, unless the property owner agrees in writing to allow the city to remove the graffiti.

(Ord. No. 395, § 2, 4-5-2011)

A. Any person who applies graffiti within the city shall have the duty to remove the same within twenty-four (24) hours after notice by the city or the public or private owner of the property involved. The failure of any person to so remove the graffiti shall constitute an additional violation of this chapter. Where graffiti is applied by juveniles, the parent or parents shall be responsible for such removal or for the payment thereof.

B. The following procedure shall be followed for removal of graffiti by the city, with the consent of the property owner. Whenever the city determines that graffiti or other inscribed materials is so located on public or private property so as to be capable of being viewed by a person utilizing any public right-of-way, and the owner of the property consents to the removal by the city of the graffiti, the city shall be authorized to provide for the removal of the graffiti, upon the following conditions:

1. If the city provides for the removal of graffiti, it shall not authorize nor undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located.

2. Prior to the removal of graffiti, the city shall obtain written consent of the owner and the owner shall execute an appropriate release prepared by the city attorney.

3. The city reserves the right to recover city costs and expenses pursuant to Section 9.29.045 of this Municipal Code, Penal Code Section 594, Civil Code Sections 731 and 1714.1, and Government Code Section 38771, et seq. and Welfare and Institutions Code Section 742.10 et seq. from any person who has willfully damaged property in a manner described within Section 9.29.030 of this Code.

(Ord. No. 395, § 2, 4-5-2011)

A. When the disposition of a criminal case, or a proceeding pursuant to Welfare and Institutions Code Section 602, determines that a minor or other person in such case is responsible for creating, causing or committing the graffiti which was abated summarily by the city, that same person shall be liable for all abatement and related costs incurred by the city. These costs shall include, but are not limited to, court costs, attorney's 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 the identification and apprehension of the minor or other person responsible for the graffiti or other inscribed material on publicly or privately owned permanent real or personal property within the city, as prescribed within Government Code Sections 38772-38773.6 and 53069.3.

1. The determination of responsibility for creating, causing or committing the graffiti shall be presumed by any confession, admission, guilty plea, or plea of nolo contendere to any violation of Penal Code Sections 594, 594.3, 640.5, 640.6, or 640.7.

2. In the case of a minor, responsibility for creating, causing or committing the graffiti shall also be determined upon a conviction by final judgment or by the minor being made a ward of the Juvenile Court pursuant to Welfare and Institutions Code Section 602 by reason of the commission of any act prohibited under Penal Code Sections 594, 594.3, 640.5, 640.6, or 640.7.

B. The city may recover all city funds used to remove graffiti, repair or replace graffiti damaged real or personal property within the city by making the expense of abatement of the nuisance, as defined by Government Code Section 38772, a lien against property of the minor or other person and a personal obligation against the minor or other person pursuant to Government Code Section 38773.2 or 38773.6. The parent(s) or guardian(s) having custody and control of the minor shall be jointly and severally liable with the minor pursuant to Government Code Sections 38772, 38773.2 and 38773.6. The graffiti nuisance abatement lien shall be created as follows:

1. The city shall give notice of intent to record a graffiti nuisance abatement lien to the minor or other person prior to recordation of a lien on the parcel of land owned by the minor or other person responsible for creating the graffiti nuisance. If appropriate, the city shall also give notice of intent to record a graffiti nuisance abatement lien to the parent or guardian having custody of the minor responsible for creating the graffiti nuisance prior to recordation of a lien on the parcel of land owned by the parent or guardian. Any such notice of intent to record a graffiti nuisance abatement lien shall be served by personal service in the same manner as a civil action in accordance with the Code of Civil Procedure Section 415.10. If the owner of record, after diligent search, cannot be found, the notice may be served by posting a copy of the notice in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Government Code Section 6062.

2. A graffiti nuisance abatement lien shall be recorded in the county recorder's office in the county in which the parcel of land is located and from the date of recording shall have the force, effect, and priority of a judgment lien.

3. A graffiti nuisance abatement lien authorized by this section shall specify the amount of the lien; the name of the agency on whose behalf the lien is imposed; the date of the abatement order; the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed; and the name and address of the recorded owner of the parcel.

4. If the lien is discharged, released, or satisfied through payment or foreclosure, notice of the discharge containing the information specified in subsection (3) shall be recorded by the governmental agency. A graffiti nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.

5. A graffiti nuisance abatement lien may be satisfied through foreclosure in an action brought by the city.

6. The city may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

C. As an alternate to a graffiti nuisance abatement lien, the city may recover its costs, as delineated above, as a special assessment against the parcel of land owned by the minor or other person responsible for creating the graffiti or by the parent or guardian having custody and control of the minor responsible for creating the graffiti. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes pursuant to Government Code Section 38773.6.

D. Second or subsequent criminal judgment. Upon the entry of a second or subsequent civil or criminal judgment within a two-year period finding that a person described in paragraph (3) of subdivision (d) of Section 38772 is responsible for the defacement of property of another by graffiti or other inscribed material, the court may order damages in an amount treble the costs of abatement pursuant to Government Code Section 38773.7

(Ord. No. 395, § 2, 4-5-2011)

A. Any person convicted of violating Section 9.29.030(B) of this chapter for the first time shall be guilty of an infraction and shall be punished by a fine of one hundred dollars ($100.00).

B. Any person convicted of violating Section 9.29.030(B) of this chapter for the second time shall be guilty of an infraction and shall be punished by a fine of two hundred fifty dollars ($250.00).

C. Any person convicted of violating Section 9.29.030(B) of this chapter for a third or any subsequent time shall be deemed guilty of a misdemeanor and shall be punished by a fine not exceeding five hundred dollars ($500.00), imprisonment not exceeding six (6) months or by both such fine and imprisonment.

D. When found guilty of an infraction as noted in either subsection A or B above, it shall be the court's option to require the monetary fine or to substitute community service to be accountable at the minimum wage rate.

E. Any person convicted of violating any provision of this chapter except for Section 9.29.030(B) shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one thousand dollars ($1,000.00), imprisonment not exceeding six (6) months or by both such fine and imprisonment.

(Ord. No. 395, § 2, 4-5-2011)

A. It is unlawful for any person, business entity, or corporation, except a parent or legal guardian to in any way furnish, provide, or sell to any person under the age of eighteen (18) years any aerosol container of paint or dye.

B. It is unlawful for any person under the age of eighteen (18) years to purchase any aerosol container of paint or dye.

C. It is unlawful for any business or establishment offering for sale to the public an aerosol container of paint or dye to fail to keep, store and maintain such aerosol paint containers in a place that is locked and secure or otherwise inaccessible to the public.

(Ord. No. 395, § 2, 4-5-2011)

It is unlawful for any person to have in his possession any aerosol container of paint or dye while in any public park, playground, swimming pool, or recreational facility (other than a highway, street, alley or way,) except for authorized employees of the city, or an individual or authorized employee of an individual or company under contract with the city.

(Ord. No. 395, § 2, 4-5-2011)

It is unlawful for any person under the age of eighteen (18) years of age to have in his possession any aero-sol container of paint or dye while on any public highway, street, alley, or way, or other public place, whether such person is or is not in any automobile or other type of vehicle.

(Ord. No. 395, § 2, 4-5-2011)

The city council may, by resolution, establish a reward for information leading to the identification, apprehension and conviction of any person who places graffiti upon any public or private property in the city. The resolution may require that the convicted offender reimburse the city for any reward paid and place responsibility for reimbursement upon the parent(s) or legal guardian(s) of any minor so convicted.

(Ord. No. 395, § 2, 4-5-2011)

Nothing in this chapter shall be deemed to prevent the city from commencing a civil or criminal proceeding to abate a public nuisance, or from pursuing any other means available to it under provisions of applicable ordinances or state law to correct hazards or deficiencies in real property, in addition to or as alternatives to the proceedings set forth in this chapter."

(Ord. No. 395, § 2, 4-5-2011)