Campbell Municipal Code Ch. 8.42 Graffiti Abatement

The City Council of the City of Campbell hereby finds and declares that graffiti is detrimental to property values, promotes blight, degrades the quality of life in the community, is inconsistent with the City's property maintenance goals and aesthetic standards, is detrimental to the public health, safety and welfare, is often related to gang activity and may, therefore, lead to an increase in crime, and if not promptly removed may lead to the spread of additional graffiti. The Council also finds that the greatest disincentive to graffiti and its spread to other properties is its prompt eradication. The Council further finds and declares that the regulation of graffiti by the City is necessary in order to protect the public health, safety and welfare. It is the intent of the City Council, through the adoption of this ordinance to provide notice to all of those who callously disregard the property rights of others, that the law enforcement agencies of the City, including the Police Department and the City Attorney's office, will strictly enforce the law to its maximum extent and severely prosecute those persons engaging in the defacement of public and private properties. This City Council further finds that the expense of abatement should be recovered for violations of this Chapter. this Chapter is intended to be complementary to and not in conflict with Penal Code section 594, which provides that any person who maliciously defaces property is guilty of vandalism, and Penal Code section 594.1 which provides that certain activities involving the possession, sales and use of aerosol paint containers are misdemeanors.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

The City Council of the City of Campbell hereby declares that graffiti is obnoxious and is a public nuisance which may be abated and that the expense of abatement and administrative costs may be collected pursuant to the procedures set forth in this Chapter and Chapter 6.10 of the Campbell Municipal Code.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

"Administrative costs" includes, but is not limited to, the costs incurred by the City for removal of the graffiti or other inscribed material from personal or real property, the costs of repair and replacement of defaced personal or real property; and the costs incurred by the City in administering the graffiti abatement on privately or publicly owned personal or real property.

"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 substance capable of defacing property.

"Expense of abatement" includes, but is 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 personal or real property, the law enforcement costs incurred by the City in identifying and apprehending the minor or person who created, caused, or committed the graffiti or other inscribed material on the publicly or privately owned real or personal property within the City; and, the costs of administering and monitoring the participation of a person, and if a minor, his or her parents or guardians, in a graffiti abatement program.

"Felt tip marker" means any marker or similar implement with a tip which at its broadest width is greater than three-eighths of an inch, containing ink or other pigmented liquid which cannot be removed with water after it dries.

"Graffiti" means any unauthorized inscription, writing, lettering, word, drawing, figure, marking, painting or design that is marked, written, etched, scratched, drawn, painted, or otherwise placed on any real or personal property.

"Graffiti implement" means an aerosol paint container, a felt tip marker, a paint stick or graffiti stick.

"Minor" means a person who is under the age of eighteen years old.

"Paint stick" or "graffiti 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 at least three-eighths of an inch in width, which cannot be removed with water after it dries.

"Property" means real or personal property, whether publicly or privately owned, within the City limits.

"Structure" means the same as defined in the Uniform Building Code.

"Surface" means the exposed area of any object, including but shall not be limited to, walls, fences, signs, retaining walls, driveways, walkways, sidewalks, curbs, street lampposts, hydrant, tree, electric, light, power, telephone or telegraph poles; drinking fountains, and garbage receptacles.

"Responsible minor" means a minor who has confessed to, admitted to, pled guilty to or pled nolo contendere to a violation of this Chapter, or to a violation of section 594, 594.1, 594.2, 594.3, 640.5, 640.6, or 640.7 of the Penal Code; or a minor convicted by a final judgment of a violation of this Chapter, or to a violation of section 594, 594.1, 594.2, 594.3, 640.5, 640.6, or 640.7 of the Penal Code; or a minor declared a ward of the Juvenile Court pursuant to section 602 of the Welfare and Institutions Code by reason of the commission of an act prohibited by this Chapter or by section 594, 594.1, 594.2, 594.3, 640.5, 640.6, or 640.7 of the Penal Code.

"Responsible person" means any person or entity who is the owner or who has primary responsibility for the management, repair or maintenance of the property.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

(a) It is unlawful for any person who owns or is otherwise in control of any real property within the City, even if it is located in the City right-of-way, to permit or allow any graffiti to be placed upon or remain for longer than seventy-two hours on any surface located on such property and visible to the public.

(b) This section shall apply to both public and private property in all zoning districts of the City.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

It is unlawful for any person under the age of eighteen years, to possess any graffiti implement while upon private property, without first having obtained the prior consent of the owner of such property to the minor's presence and possession of a graffiti implement on the property.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

It is unlawful for any person to have in his or her possession any graffiti implement in any public park, playground, beach, swimming pool or other public recreational facility, or while loitering in or near an underpass, bridge abutment, storm drain, or other similar types of infrastructure not normally used by the public, except as may be authorized by the City. This provision shall not apply to any person who is traveling to or from a school in which he or she is enrolled and attending a class for which the teacher has required the use of the graffiti implement in such person's possession.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

(a) The City Manager may from time to time implement one or more programs for the removal of graffiti located on any public or private property within the City, which is visible from any public right-of-way or public or private property, at the City's expense, and without reimbursement from the owner or other person in control of real or personal property, unless the City elects to recover the expense of abatement and/or administrative costs, from third parties pursuant to section 6.10.200, upon the following conditions:

(1) The property owner or other person in control of such property should be requested to perform the removal with his/her own resources;

(2) The City shall not paint or repair a more extensive area than is necessary to remove the graffiti, unless the City Manager or his/her designee determines 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 property owner or other person in control of such property agrees to pay for the cost of repainting or repairing the more extensive area; and

(3) The removal of the graffiti may be performed only after securing the consent of the property owner or other person in control of such property, and that individual executes a release and right of entry form permitting such graffiti removal.

(b) Use of Public Funds. Whenever the City becomes aware, or is notified and determines, that graffiti is so located on any public or private property within the City which is visible from any public right-of-way or public or private property, the City 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 City Manager, or designee, determines that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

Notwithstanding the City Manager's right to implement graffiti removal programs pursuant to section 8.42.070, it shall be the primary obligation of all persons who own or are otherwise in control of any real or personal property upon which graffiti has been placed, to cause the removal of such graffiti within seventy-two hours after receiving the notice described in subsection (a) of this section. The City Manager may cause the abatement and removal of graffiti on public or private property in accordance with the following procedure:

(a) Notice. The City Manager or his/her designee shall issue a seventy-two-hour written notice of intention to abate the graffiti as a public nuisance and shall serve such notice by any of the following methods:

(1) By personal service on the owner, occupant or person in charge or control of the property;

(2) By posting at a conspicuous place on the property or abutting public right-of-way; or

(3) By sending a copy of such notice by registered or certified mail addressed to the owner or person in charge or control of the property, at the address shown on the last available assessment roll, or as otherwise known.

(b) Form. The notice of intention shall be in substantially the following form:

NOTICE OF INTENT TO REMOVE GRAFFITI

(Name and address of person notified)

Date: _______

NOTICE IS HEREBY GIVEN that you are required by Campbell Municipal Code section 8.42.080 at your expense to remove or paint over the graffiti in existence on the property located at (address), which is visible to public view, within seventy-two hours after receipt of this notice; or, if you fail to do so, City employees or private contractors employed by the City will enter upon your property and abate the public nuisance by removal or painting over the graffiti. The administrative costs of abatement by the City employees or private contractors will be assessed against you and your property and such costs will constitute a lien or special assessment upon such property until paid.

At the conclusion of this seventy-two-hour period, without further notice and at your expense, the City may proceed with the abatement of the graffiti inscribed on your property unless you appeal the order of abatement to the City Council within the seventy-two-hour period referenced above. Any appeal shall be accompanied by a written statement of reasons and the payment of the filing fee established by the City Council.

(c) Appeal.

(1) Within seventy-two hours after issuance of the notice described in subsection 8.42.080(a), the owner or person occupying or controlling such property affected may appeal the order of abatement. Appeals shall be filed with the City Clerk and shall be accompanied by a letter stating the reasons for the appeal and a fee as required by Council resolution. A hearing officer designated pursuant to Section 6.10.210 shall hear such appeals;

(2) Within fifteen days after receipt of the appeal application, the City Clerk shall notify the applicant of the date, time and location at which the hearing officer shall hear the appeal. The hearing officer designated pursuant to Section 6.10.210 shall hear and consider all relevant evidence, objections or protests, and shall receive testimony from owners, witnesses, City personnel and interested persons relevant to such alleged public nuisance and to proposed abatement measures.

(d) Removal by City. Seventy-two hours after service of the notice, or if appealed, not less than twenty-four hours after the decision of the hearing officer declaring the graffiti to be a public nuisance, the City Manager is authorized and directed to cause the graffiti to be abated by the City or private contractor, and the City or its private contractor is expressly authorized to enter upon the property for such purposes.

(e) Accounting. The City Manager shall keep an account of the cost of abatement and an itemized report to the City Council shall be filed with the City Clerk. Such report shall refer to each separate lot or parcel of land by description sufficient to identify such lot or parcel, together with the expense proposed be assessed against each separate lot or parcel of land.

(f) Assessment of Costs Against Owner or Other Person in Control of Property. The total administrative costs of abatement shall be a personal obligation of the owner or other person in control of the real or personal property upon which graffiti has been abated, and shall be paid by such owner or other person within thirty days after receiving a demand for such payment from the City. Pursuant to Government Code sections 38773.1 and 38773.5, the total costs of abatement shall constitute a special assessment or a lien against the property subject to the graffiti abatement, if not paid in full within thirty days after demand for such payment has been made by the City. The City shall follow procedures set forth in section 6.10.200 of the Campbell Municipal Code prior to seeking the special assessment or recordation of the lien.

The owner or other person in control of the real or personal property upon which graffiti has been abated shall not be relieved of any of its obligations or liabilities pursuant to this section 8.42.080 by virtue of subsection 8.42.080(g) below or any other provision of this Chapter.

(g) Assessment of Costs Against Minor, Parent and/or Guardian.

(1) The total expense of abatement, including all administrative costs, shall also be a personal obligation of any minor responsible for the graffiti upon the property subject to the graffiti abatement, and shall be paid for by such minor within thirty days after receiving a demand for such payment from the City. Pursuant to Government Code sections 38773.2 and 38773.6, the total expense of abatement and administrative costs shall constitute a special assessment or a lien against any real property owned by the minor, if such expense of abatement and administrative costs are not paid in full within thirty days after demand for such payment has been made by the City. The City shall follow procedures set forth in section 6.10.200 of the Campbell Municipal Code prior to seeking the special assessment or recordation of the lien.

(2) The parent or guardian having custody and control of the minor responsible for the graffiti upon the property subject to the graffiti abatement shall be jointly and severally liable with the minor and the expense of abatement and administrative costs shall constitute a personal obligation of such parent or guardian. The total expense of the abatement and administrative costs shall be paid for by a parent or guardian having custody or control of the minor within thirty days after receiving a demand for such payment from the City. Pursuant to Government Code section 38773.6, the total expense of abatement, including all administrative costs, shall constitute a special assessment or a lien against any real property owned by the parent or guardian having custody or control of the minor, if such expense of abatement and administrative costs are not paid in full within thirty days after demand for such payment has been made by the City. The City shall follow procedures set forth in section 6.10.200 of the Campbell Municipal Code prior to seeking the special assessment or recordation of the lien.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

(a) Any responsible minor or person who created, caused, or committed the graffiti or other inscribed material on publicly or privately owned personal or real property within the City shall be liable to the city for the expense of abatement of such graffiti and administrative costs.

(b) Any responsible minor or person owing money to the City under this section shall be liable in any action brought in the name of the City for the recovery of the expense of abatement of such graffiti and administrative costs.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

(a) Any parent or other legal guardian who consents to, permits, or otherwise knowingly allows his or her minor to possess a graffiti implement shall be jointly and severally liable for the expense of abatement and administrative costs which are incurred by any person in connection with the graffiti caused by said minor or by the graffiti implement. Liability pursuant to this section shall be in addition to any other liability imposed by law, including without limitation California Civil Code section 1714.1.

(b) Wherever any minor who created, caused, or committed the graffiti or other inscribed material on publicly or privately owned personal or real property within the City, or any minor against whom a fine, levy, expense of abatement and administrative costs are assessed pursuant to this Chapter, that minor's parent or legal guardian shall also be liable to the city for the expense of abatement and such fine, levy or administrative cost.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

The procedures set forth in this Chapter shall be cumulative to, and shall not foreclose the application of, any other existing legal remedies.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

(a) It is unlawful for any person, firm, corporation or other entity to violate any provision, or fail to comply with any mandatory requirement of this Chapter. Except as otherwise provided in subsection (d) of this section, any person, firm, corporation or other entity violating any provision, or failing to comply with any mandatory requirement of this Chapter is guilty of an infraction, and upon conviction shall be published by a fine of not more than one hundred dollars.

(b) Notwithstanding any provision to the contrary, any person, firm or corporation committing any act made unlawful pursuant to this Chapter shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than one thousand dollars and/or imprisonment of not more than six months, if any of the following circumstances exists:

(1) The violation was committed willfully or with knowledge of its illegality;

(2) The violator does not cease, or otherwise abate the violation after receiving notice of such violation within the time specified in the notice;

(3) The violator has previously been convicted of violating the same provision of this Chapter within two years of the currently charged violation; or

(4) The provision violated specifies that such violation shall be a misdemeanor.

(c) Any person or entity violating any provision of this Chapter or failing to comply with any of its requirements shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of this Chapter is committed, continued, or permitted by such person or entity and shall be deemed punishable therefor as provided herein.

(d) Community service in and for the City may be imposed by the court, in addition to any penalty imposed pursuant to this Chapter, where there has been a conviction or guilty or nolo contendere plea to a violation of this Chapter.

(e) Any community service which is required pursuant to subsection (a) of this section for a person under the age of eighteen years may be required by the court to be performed in the presence and under the direct supervision of the person's parent or legal guardian.

(f) If a minor is personally unable to pay any fine or restitution levied for violating this Chapter, the parent or legal guardian shall be liable for the payment of the fine or restitution for any intentional acts of the minor.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)

For each conviction of a person between the ages of thirteen to twenty-one years old for violation of Campbell Municipal Code section 8.42.040(a) or any State law pertaining to vandalism of property with a graffiti implement, the City may petition the sentencing court to suspend existing driving privileges or delay the issuance of driving privileges.

(Ord. No. 2267, § 1(Exh. A), 9-15-2020)