Chapter 8.38 — GRAFFITI

Footnotes:

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Editor's note— Ord. CS 952, § 1, adopted April 28, 2014, repealed the former ch. 8.38, §§ 8.38.010— 8.38.120, and enacted a new ch. 8.38 as set out herein. The former ch. 8.38 pertained to similar subject matter and derived from Ord. CS 941, § 1, adopted Nov. 14, 2011.

The purpose of this chapter is to promote the public health, safety and welfare of residents and property within the City of Atwater by providing a program for the prevention and removal of graffiti. The increase of graffiti on both public and private buildings, structures and places is creating a condition of blight within the City which results in a deterioration of property and business values for surrounding properties, all to the detriment of the City.

The City Council finds and determines that graffiti is obnoxious and a public nuisance which must be abated so as to avoid the detrimental impact of such graffiti on the City, and to prevent the further spread of graffiti. Also, the City Council and or the City Manager will create a High Target list of properties based on the location of the property. Those areas must be responded to and dealt with in a priority manner.

(Ord. CS 952, § 1, 4-28-2014)

As used in this chapter, the following terms shall have the meanings set forth herein:

"Abate" or "abatement" means the elimination, removal, or termination of graffiti from public or private property within the City's boundaries.

"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 substances capable of defacing property.

"City Manager" means the City Manager of the City of Atwater or his/her designee.

"Cost of removal" means any cost incurred by the City for removal, elimination, or termination of graffiti from public or private property.

"Deface," "defaces" or "defacing" means intentionally altering the physical shape or physical appearance of property by inscription, words, figures, signs, or design without prior written permission of the owner.

"Expenses of abatement" means all costs incurred by the City related to abatement of graffiti conditions, including, without limitation, the costs of removal, court costs, attorneys' fees, administrative costs, and any law enforcement costs relating to the identification and/or apprehension of a person who defaces property with graffiti or who fails to remove graffiti from property after being ordered to do so.

"Graffiti" means any inscription, word, figure, or design that is marked, etched, scratched, drawn, or painted on any surface, without the express permission of the owners of such surface, regardless of the nature of the material of which the surface is composed.

"Graffiti implement" means any item capable of marking a surface to create graffiti including, but not limited to, aerosol paint containers, dye containers, paint sticks, felt-tip markers or marking pens, marking instruments, drill bits, grinding stones, scribers, glass cutters or etching tools or other instruments capable of scarring glass, metal, concrete or wood.

"High Priority Target" is a building, fence, or location that is explicit enough to be clearly viewed upon entering the City limits.

"Owner" means any person or entity that is the owner of real or personal property that has been defaced, or who has primary responsibility for control over the property, or who has primary responsibility for maintenance and repair of the property, and shall include any person owning, leasing, renting, occupying, managing, or having charge of any property or structure.

"Person(s)" means a natural person(s).

"Public view" means any public or private area that is accessed from a public roadway, sidewalk, or common area and is open to view by persons from such public roadway, sidewalk or common area.

"Responsible adult" means a parent, legal guardian, or other person over the age of 18 years who is charged with legal responsibility and/or supervision of a minor.

(Ord. CS 952, § 1, 4-28-2014)

No person shall place graffiti upon any public or privately owned permanent structure or temporary structure or personal property located on publicly or privately owned real property.

(Ord. CS 952, § 1, 4-28-2014)

A.

Access. No person or business engaged in a commercial enterprise shall display for sale, trade or exchange to the public any aerosol paint containers except in an area from which access by the public is securely precluded without employee assistance. Acceptable methods for displaying aerosol paint containers for sale shall be by containment in: (1) a completely enclosed cabinet or other storage device which shall, at all times except during access by authorized representatives, remain securely locked; or (2) an enclosed area behind a sales or service counter from which the public is precluded from entry. Nothing in this chapter shall relieve such person or business entity from complying at all times with the requirements of California Penal Code Section 594.1(c) by posting signs as described therein.

B.

Storage Requirements. No person or business engaged in the business of selling, providing or trading aerosol paint containers shall store such containers in an area accessible to the public.

C.

Any person or business engaged in the retail sale of aerosol paint containers must display at a conspicuous location a legible sign measuring not less than 12 inches by 12 inches with letters at least one-half inch in height which states:

It is unlawful for any person to sell or give to any individual under the age of 18 years any implement or other device capable of being used to deface property. Any person who maliciously defaces real property is guilty of vandalism which is punishable by a fine, imprisonment, or both.

D.

It shall be unlawful for any person or business to sell, exchange, give, or loan, or cause or permit to be sold, exchanged, given, or loaned, any graffiti implements to a minor, unless such minor is in the presence of the minor's responsible adult.

E.

It shall be unlawful for a minor to purchase or otherwise obtain any graffiti implements unless such minor is in the presence of the minor's responsible adult.

F.

Any business violating this section shall be subject to suspension, revocation, or nonrenewal of its City business license.

G.

Any person or business violating any provision of this section, or failing to comply with any of its requirements, shall be subject to the administrative citation procedures set forth in Chapter 8.32.080 Administrative citation and Chapter 8.32.090 Administrative sanction schedule.

(Ord. CS 952, § 1, 4-28-2014)

A.

It shall be unlawful for any person to possess any graffiti implement for the purpose of defacing any public or private property, without the express consent of the owner of such property.

B.

It shall be unlawful for a minor to possess any graffiti implement on any public highway, street, alley, or way, or in any automobile, vehicle or other conveyance, or while in any public park, playground, or other public facility.

C.

The foregoing provisions shall not apply to minors that are transporting or using graffiti implements for lawful purposes while under the supervision of the minor's responsible adult, instructor, or employer.

(Ord. CS 952, § 1, 4-28-2014)

A.

In the event the owner of a high targeted building, upon which graffiti has been placed, declines to consent to removal by the City, as provided herein, or fails to remove the graffiti within three days after service of a notice to remove the graffiti, the owner shall be subject to the administrative citation process set forth in Chapter 8.32.080. All other property owners will have five business days to remove the graffiti after service of a notice to remove the graffiti has been issued.

B.

Whenever the City Manager determines that graffiti is located within the public view, the City Manager is authorized to seek the consent of the owner to cause the graffiti to be removed by City forces or private

contract. Where the graffiti is on a private property, unless summary abatement is authorized under AMC 8.32.050, entry onto the private property for removal of the graffiti may be authorized by securing the consent of the owner, or upon issuance of an abatement warrant by a court of competent jurisdiction under California Code of Civil Procedure Section 1822.50 et seq.

C.

Graffiti shall be removed or completely covered in a manner that renders it inconspicuous. When graffiti is painted out, the color used to paint it out shall match the original color of the surface, or the entire surface shall be repainted with a new color that is aesthetically compatible with existing colors and architecture. The removal shall not leave shadows and shall not follow the pattern of the graffiti such that letters or similar shapes remain apparent on the surface after graffiti markings have been removed. If the area is heavily covered with graffiti, the entire surface shall be repainted.

D.

The City Manager may waive the costs associated with removing the graffiti provided the owner agrees to assign his/her victim's rights to the City so the City may seek restitution in accordance with California Penal Code Section 594.

(Ord. CS 952, § 1, 4-28-2014)

The Police Chief is hereby authorized to summarily abate gang-related graffiti. The abatement may be undertaken by City staff, or by outside contractors. Gang-related graffiti shall be defined as graffiti that is placed on private or public property by a person reasonably believed by the City's Police Department or other local law enforcement agency to be a member of, or affiliated with, a criminal street gang, as that term is defined in California Penal Code Section 186.22.

(Ord. CS 952, § 1, 4-28-2014)

A.

Land Use Entitlement Conditions. In approving subdivision maps, conditional use permits, variances, building permits, or other similar land use entitlement or development or design applications, the City may impose one or all of the following conditions, or other similar or related conditions:

1.

Use of anti-graffiti materials on surfaces exposed to public view of a type and nature that is acceptable to the City Manager.

2.

Use of landscaping to screen or provide a barrier to surfaces that may be prone to graffiti.

Right of access by the City to remove graffiti.

4.

Applicants, permittees, and all successors in interest shall provide the City with sufficient matching paint and/or anti-graffiti material on demand for use in painting over or removal of graffiti.

5.

Applicants, permittees, and all persons applying for subdivision maps shall, as part of any conditions, covenants and restrictions, covenant that the owners of the lots shall immediately remove any graffiti.

B.

Encroachment Permit Conditions. All encroachment permits issued by the City may, among other things, be conditioned on the following:

1.

Use of anti-graffiti materials on surfaces exposed to public view of a type and nature that is acceptable to the City Manager.

2.

Use of landscaping to screen or provide a barrier to the encroaching object.

3.

The right of the City to remove the graffiti or to paint the encroaching object or structure.

4.

Permittee shall provide the City with sufficient matching paint and/or anti-graffiti material on demand for use in painting over or removal of graffiti on the encroaching object or structure.

5.

Permittee shall immediately remove all graffiti.

(Ord. CS 952, § 1, 4-28-2014)

A.

Any person violating any provision of this chapter, or failing to comply with any of its requirements, shall be subject to the administrative citation procedures set forth in Chapter 8.32.090 is punishable by a fine not exceeding $50.00 for the first offense. Second violation within one year of the first violation is punishable by a fine not exceeding $100.00. A third violation within one year of the first violation is punishable by a fine not exceeding $150.00.

B.

Additional Penalties Available. Whenever deemed appropriate, it is the City's intent to petition a sentencing court to impose the following additional penalties upon conviction:

1.

Performance of a minimum of 48 hours of community service not to exceed 200 hours over a period up to 180 days. Community service includes graffiti removal service.

2.

That the defendant personally clean up, repair, or replace the damaged property consistent with AMC 8.32.030 and the defendant, or responsible adult, keep the damaged property or other specified property in the City free of graffiti for up to one year. This clean-up, repair, or replacement shall be at the defendant's expense or at the expense of the responsible adult of the defendant if the defendant is a minor.

3.

For each conviction of a person aged 13 years or older, the City may petition the court to suspend existing driving privileges or delay the issuance of driving privileges for up to three years in accordance with California Vehicle Code Section 13202.6.

C.

Restitution. The City or any owner who suffers property damage and/or monetary loss as a result of having to remove graffiti may seek restitution for all expenses of abatement. Restitution may be pursued by the City and/or the owner in a separate civil action or as part of a criminal proceeding against the perpetrator.

D.

Parental Responsibilities. Pursuant to California Civil Code Section 1714.1(b), where graffiti is applied by a minor, the responsible adult of the minor shall be jointly and severally liable for the payment of civil damages resulting from the minor's misconduct in an amount not to exceed $25,000.00.

(Ord. CS 952, § 1, 4-28-2014)