Banning Municipal Code Ch. 8.32 Graffiti Prevention and Removal

Footnotes:

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Editor's note— Sec. 1 of Ord. No. 1436, adopted Mar. 8, 2011, repealed Ch. 8.32, §§ 8.32.010—8.32.090 and enacted new provisions to read as herein set out. Former Ch. 8.32 pertained to the same subject matter and derived from the 1965 Code.

The city council specifically finds that graffiti on public or private property is a blighting factor which not only depreciates the value of property which has been the target of such vandalism but also depreciates the value of the adjacent and surrounding properties so as to create a negative impact on the entire city. The purpose of this chapter is to provide a program for abatement of graffiti from public and private property to reduce blight and deterioration within the city, protect public safety, and for expeditious removal at public expense of graffiti from structures on both public and private property.

(Ord. No. 1436, § 1, 3-8-11)

A. "Adhesive stickers" means any sheet of paper, fabric, plastic or other substance or material with an adhesive backing.

B. "Aerosol paint container" means any aerosol 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 being applied to public or private property in a manner that defaces the property.

C. "City" shall mean the City of Banning.

D. "City council" means the city council of the City of Banning.

E. "City manager" means the city manager of the City of Banning or his/her designee.

F. "Continuously viewable to store employees" means within line of sight of an employee or store manager at all times during business hours. Continuously viewable to store employees shall include viewable via closed circuit security cameras.

G. "Etch cream" or "etching cream" means any caustic cream, gel, liquid, or solution capable, by means of a chemical action, of defacing, damaging, or destroying hard surfaces.

H. "Etchers" or "etching tools" means any sharp or pointed instrument, device or other mechanism, including, but not limited to, glass etchers, metal etchers, cutting and grinding instruments, awls, chisels, glass cutters, drill bits or any other instrument that is capable of scratching or otherwise marking any surface, including, but not limited to, glass, mirrors, windows, steel, aluminum, brass, tin, fiberglass, wood, plastic, concrete or any other surface.

I. "Graffiti" means any unauthorized inscription, word, figure, symbol, configuration of letters and/or numbers or design that is marked, etched, scratched, drawn, written, scribed, stained, stuck on, adhered or affixed to or on any real or personal property, including, but not limited to, buildings, walls, windows, signs, structures, places, rocks, landscape materials, or other surfaces and/or the interior or exterior of any other structure, regardless of the nature of the material of which the surface is composed.

J. "Graffiti implement" means an adhesive sticker, aerosol paint container, etching cream, etching tool, marking pen, a paint or graffiti stick, spray actuators, or other similar devices that may be used to scar or deface property.

K. "Marking pen" means any marker pen or any similar implement containing an ink, paint, or other pigmented liquid.

L. "Official" means city official or official authorized to take action with regards to the abatement of a nuisance on behalf of the city including building official, chief, city manager, health officer, code enforcement officer manager and their designees.

M. "Paint stick" or "graffiti stick" means a device containing a solid form of paint, chalk, wax, epoxy, or other similar substance capable of leaving a visible mark on a surface.

N. "Spray actuator" means an object or device that is capable of being attached to an aerosol or other paint container for the purpose of spraying the substance contained therein.

(Ord. No. 1436, § 1, 3-8-11)

A. It shall be unlawful for any person to apply graffiti on any surface of any trees, buildings, walls, fences, poles, signs or any other public or privately owned real or personal property within the city.

B. It shall further be unlawful for any person to solicit or command another person to apply graffiti, or for any person to aid or abet, or agree to aid or abet another person to plan to apply graffiti, including, but not limited to, acting as a "lookout."

C. The parent or legal guardian of a child under the age of eighteen that engages in any of the activities set forth in subsection A or B of this section shall be personally responsible for such activities.

(Ord. No. 1436, § 1, 3-8-11)

A. 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"), to permit property which is defaced with graffiti to remain so defaced for a period of seven days after notice of same, unless: (i) said person shall demonstrate by a preponderance of evidence that he or she does not have the financial or physical ability to remove the defacing graffiti; or (ii) 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 defaced with graffiti to remain defaced for a period of fifteen days after notice of same.

B. The existence of any surface of a structure on real property which has been defaced with graffiti after removal more than five times in twelve months by the city at its expense is a public nuisance, and may be abated by modifications to the structure or surface, or to the immediate surrounding area. The surface or surfaces may be required to be retrofitted, at the cost of the property owner of said property, or at the cost of the city at the city's option, with 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.

(Ord. No. 1436, § 1, 3-8-11)

Whenever the city becomes aware or is notified and determines that graffiti is so located on publicly or privately owned property within the city, the city shall be authorized to use public funds for the removal of the graffiti, or painting or repairing the property, 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 city manager or his or her 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, or unless the responsible party or the person causing the graffiti, or if a minor, his or her parent or guardian agree to or ordered to pay for the costs of repainting or repairing the more extensive area.

(Ord. No. 1436, § 1, 3-8-11)

A. Prior to entering upon private property or property owned by a public entity other than the city, for the purposes of removal of graffiti, the city shall attempt to secure the consent of the responsible party, and a release of the city from liability for private or public property damage.

B. If a responsible party fails to remove the offending graffiti within the time herein specified, or if the city 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 city consistent with the terms of this section, the city may commence abatement of the graffiti and recover costs for the abatement of the graffiti in accordance with chapter 8.48, which procedures authorize the recovery of all costs incurred by the city in abating graffiti including the recordation of a lien against the property where the graffiti was maintained.

(Ord. No. 1436, § 1, 3-8-11)

The Banning Police Department may promulgate procedures for preremoval preservation of sufficient evidence of the graffiti for criminal prosecutions or proceedings pursuant to Section 602 of the Welfare and Institutions Code pertaining to the person or persons who inscribed the graffiti. These procedures shall be followed by the city prior to or during removal of the graffiti.

(Ord. No. 1436, § 1, 3-8-11)

A. Any gas, telephone, water, sewer, cable, telephone and other utility operating in the city, other than an electric utility, shall paint their above-surface metal fixtures which are installed after the effective date of the ordinance codified in this chapter with a uniform paint type and color as directed by the city manager or his or her designee;

B. Encroachment permits issued by the city may, among other things, be conditioned on:

1. The permittee applying an anti-graffiti material to the encroaching object or structure of a type and nature that is acceptable to the city manager, or his or her designee;

2. The immediate removal by the permittee of any graffiti;

3. The right of the city to remove graffiti or to paint the encroaching object or structure;

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 or structure containing graffiti.

C. In imposing conditions upon conditional use permits, variances, building permits to the extent permitted by this Code, or other similar land use entitlements or development or design applications, the city may impose graffiti removal requirements or any or all of the following conditions, or other similar or related conditions:

1. Applicant shall apply an anti-graffiti material of a type and nature that is acceptable to the city manager, or his or her designee, to such of the publicly viewable surfaces to be constructed on the site deemed by the city manager, or designee, to be likely to attract graffiti ("graffiti-attracting surfaces" hereinafter in this section);

2. Applicant shall grant in writing, the right of entry over and access to such parcels, upon forty-eight hours' posted notice, by authorized city employees or agents, for the purpose of removing or painting over graffiti on graffiti-attracting surfaces previously designated by the city manager, or designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land;

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

4. 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 city, that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees and structures thereon to the city's satisfaction;

5. The city and the redevelopment agency shall, as part of any conditions, covenants and restrictions, covenant, which covenant shall run with the land that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees and structures thereon to the city's satisfaction.

(Ord. No. 1436, § 1, 3-8-11)

A. 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 person under the age of eighteen years.

B. No person shall sell any graffiti implement without first obtaining from the purchaser a "bona fide evidence of majority and identity" as defined by Penal Code Section 594.1(a)(3).

(Ord. No. 1436, § 1, 3-8-11>

A. Every person who owns, conducts, operates or manages a retail commercial establishment selling any aerosol paint containers or actuators shall store or cause such supplies to be stored in an area viewable by, but not accessible to, the public in the regular course of business without employee assistance, pending legal sale or disposition of such supplies. "Not accessible to the public" means that such supplies must be (i) stored under lock and key, and only the store manager or his/her designee shall have access to the supplies, or (ii) stored behind or under a store counter that is only accessible to authorized store personnel.

B. Every person who owns, conducts, operates or manages a retail commercial establishment selling any paint sticks, marking pens, etching creams or etching tools shall store or cause such supplies to be stored in an area continuously viewable to store employees.

C. Nothing herein shall relieve such person or business entity from, at all times, complying with the requirements of Penal Code Section 594.1(c) by posting signs as described therein.

D. Every retail commercial establishment selling graffiti implements shall place a sign in the direct view of such persons responsible for accepting customer payment for graffiti implements stating:

"Pursuant to the Banning Municipal Code, selling graffiti implements to persons less than eighteen (18) years of age is against the law and punishable by six (6) months in jail and/or a fine of $1,000."

E. Upon request of a Banning police officer or code enforcement officer, any person who owns, conducts, operates or manages a retail commercial establishment selling any graffiti implements shall provide copies of any merchandise inventory that relates to graffiti implements.

(Ord. No. 1436, § 1, 3-8-11)

No person shall have in his or her possession any graffiti implement, with intent to apply graffiti, while upon public or private property.

(Ord. No. 1436, § 1, 3-8-11)

It shall be unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement, with intent to apply graffiti, while upon public or private property.

(Ord. No. 1436, § 1, 3-8-11)

The existence of graffiti within the city limits is a public nuisance and may be abated in accordance with the procedures set forth in chapter 8.48. The cost for the abatement of graffiti may be recovered in accordance with the cost recovery provisions also set forth in chapter 8.48. The procedures provided in this chapter are in addition to all other remedies and cost recovery options available to the city by law or in equity, including, but not limited to, those provided in chapter 1.32 of this Code.

(Ord. No. 1436, § 1, 3-8-11; Ord. No. 1598, § 9, 2-27-24)

A. Pursuant to Civil Code Section 1714, any person that causes any injury to or the defacement of the property of another by any act of graffiti shall be personally liable for any damages resulting from the graffiti.

B. Pursuant to Civil Code Section 1714.1, any parent or legal guardian, whose child under the age of eighteen possesses a graffiti implement, shall be personally liable for any and all costs to any person incurred in connection with the removal of graffiti caused by said child, or by said graffiti implement, and for all attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damages, up to twenty five thousand dollars.

(Ord. No. 1436, § 1, 3-8-11)

A. Pursuant to Section 53069.5 of the Government Code, the city does hereby offer a reward of up to two thousand dollars for information leading to the arrest and conviction of any person for violation of Penal Code Section 594 or any section of this chapter, not to exceed one reward of two thousand dollars per violation. The specific amount of the reward shall be determined by the chief of police up to the two thousand dollar maximum, provided that a greater amount may be authorized by the city council by resolution. In the event of multiple contributors of information for a single violation, the reward amount shall be divided by the city in the manner deemed appropriate by the city police chief. 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.

B. Claims for rewards under this section shall be filed, processed, and paid in accordance with procedures established by the police chief.

C. The person convicted of committing the graffiti offense shall be liable for any rewards paid pursuant to this section and, if that person is an unemancipated minor, the custodial parent of said minor shall be jointly and severally liable for any rewards paid pursuant to this section.

(Ord. No. 1436, § 1, 3-8-11)

A. Any violation of this chapter shall be a misdemeanor offense punishable by either six months in jail, a one thousand dollar fine, or both such fine and imprisonment.

B. In lieu of, or in addition to the penalties specified in this section, a minor or other person who is convicted of or pleads guilty or nolo contendere to graffiti violations shall be required to perform community service as described by the court, based on the following minimum requirements:

1. The minor or adult shall perform not less than forty hours of community service.

2. The period of community service shall be performed under the supervision of a community service provider approved by the chief of police or his or her designee.

(Ord. No. 1436, § 1, 3-8-11)