Carpinteria Municipal Code Ch. 9.44 Graffiti Control and Abatement

Footnotes:

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Prior ordinance history: Ord. 487.

This chapter shall be known as the "Graffiti Control and Abatement Code of the City of Carpinteria."

(Ord. 525 § 1 (part), 1996)

The purpose of this chapter is to provide a program for the removal of graffiti from public and private property and to provide regulations to prevent the spread of graffiti and the defacement of property in the city.

(Ord. 525 § 1 (part), 1996)

The city council finds as follows:

A. Graffiti on either public or private property results in blight, decreases property values and deprives surrounding residents and owners of the right to comfortable enjoyment of life and property.

B. Graffiti is obnoxious, constitutes a public nuisance, and is a threat to public safety which must be abated to prevent its proliferation.

C. Graffiti must be removed as quickly as possible to minimize harm to persons and property in the community.

D. This chapter is consistent with Government Code Sections 38772 et seq. and 53069.3, which authorizes the enactment of ordinances for the use of city funds to remove graffiti.

E. 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, sale and use of aerosol paint containers are misdemeanors.

(Ord. 525 § 1 (part), 1996)

Except where the context otherwise requires, the following definitions govern the construction of this chapter.

"Aerosol spray 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 capable of defacing property.

"Glass cutters" means any tools or instruments designed or intended to cut or etch glass surfaces.

"Graffiti" means any inscription, word, figure or design that is marked, etched, pasted, or otherwise placed on property without the prior approval of the property owner or person in lawful possession or control of the property.

"Graffiti implement" means any implement capable of marking a surface to create graffiti including, but not limited to, any aerosol paint container, paint or graffiti stick, felt-tip marker, marking pen, gum label, marking instrument, drill bit, grinding stone, scribe, glass cutter, or etching tool, or other implements capable of marking or scarring glass, metal, concrete or wood.

"Graffiti removal costs" means all costs that would be considered abatement costs in the context of a nuisance abatement proceeding under this chapter. In addition, such costs expressly include, but are not limited to, costs of removal of graffiti or other material, costs of repair and replacement of the defaced property, all city staff time, costs of the police investigation, city attorney time and fees, and any court costs incurred.

"Gum label" means any sheet of paper, fabric, plastic or other substance with an adhesive backing which, when placed on a surface, is not easily removed.

"Marker pen" means any indelible marker or similar implement containing an ink that is not water-soluble.

"Minor," except as otherwise provided, means a person under eighteen years of age.

"Paint" 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.

"Posted" means a sign placed in a reasonable location or locations stating it is a misdemeanor to possess a marker pen in the specified city facility, park, playground, swimming pool, beach or recreational area without valid authorization.

"Responsible party" means any party made liable pursuant to this chapter for the city's graffiti removal costs in the city. Responsible parties include, but are not limited to, the following:

1. Any person who creates graffiti;

2. Any owner or person legally in possession or control of real property on which graffiti exists; and

3. In the case of a minor who creates graffiti, any parent or legal guardian of such minor.

"Spray actuator" means an object, such as a spray tip, nozzle, or button, which is capable of being attached to an aerosol paint container for the purpose of spraying the substance contained therein.

(Ord. 525 § 1 (part), 1996)

The city council reaffirms any previous declarations that graffiti is a public nuisance which may be abated pursuant to the abatement procedures of this chapter.

(Ord. 525 § 1 (part), 1996)

It is unlawful for any person to mark, apply or etch graffiti on any structure located on public or private real property within the city.

(Ord. 525 § 1 (part), 1996)

A. Subject to the provisions of subsection E of this section, it is unlawful for any person, firm or corporation to sell, give or in any way furnish any graffiti implement to another person who is under the age of eighteen years, except that a parent, legal guardian, instructor or employer may give or otherwise furnish, but not sell, a graffiti implement to another person who is under the age of eighteen years.

B. Subject to the provisions of subsection E of this section, it is unlawful for any person under the age of eighteen years to purchase a graffiti implement.

C. Every retailer selling or offering for sale any graffiti implement shall post in a conspicuous place a sign in letters at least three-eighths of an inch high stating: "Any person who maliciously defaces real or personal property with an aerosol spray paint container, marker pen, or other graffiti implement is guilty of vandalism which is punishable by a fine, imprisonment, or both."

D. Each violation of the provisions of this section shall constitute a separate offense. The offense may be filed as either an infraction or as a misdemeanor at the discretion of the city attorney.

E. The provisions of this section shall not apply to the sale, giving, furnishing or purchase of gum labels as defined in this chapter.

(Ord. 525 § 1 (part), 1996)

A. It is unlawful for any person under the age of eighteen years to possess a graffiti implement while in any posted city facility, park, playground, swimming pool, beach or recreational area, other than a highway, street, alley or way, unless he or she has first received valid authorization from the city.

B. It is unlawful for any person under the age of eighteen years to possess a graffiti implement for the purpose of defacing property while on (i) any city street, alley or way, or other public place, or (ii) any private street, sidewalk, walkway, vacant area, parking lot, or area or any building open to the public within the city without the consent of the person or legal entity entitled to possession thereof, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance.

C. Any law enforcement officer who observes a violation of this section may take immediate possession of the aforementioned graffiti implement.

D. Each violation of the provisions of this section shall constitute a separate offense. The offense may be filed as either an infraction or as a misdemeanor at the discretion of the city attorney.

(Ord. 525 § 1 (part), 1996)

Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol spray paint containers, marker pens, or graffiti implements shall store or cause such items 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 aerosol spray paint containers, marker pens, or graffiti implement. The provisions of this section shall not apply to gum labels as defined in this chapter.

(Ord. 525 § 1 (part), 1996)

This chapter is not to be construed as the exclusive regulation of the sale, display or possession of aerosol spray paint containers, marker pens, or graffiti implements. It shall supplement and be an addition to other regulatory codes, statutes and ordinances heretofore or hereafter enacted by the city, state or legal entity or agency having jurisdiction.

(Ord. 525 § 1 (part), 1996)

Any parent or other legal guardian of a minor shall be personally liable for any and all graffiti removal costs associated with graffiti caused by the minor. This section shall in no way limit the amount of recovery against the parent or other legal guardian for their own common law negligence.

(Ord. 525 § 1 (part), 1996)

A. Should the city manager, or his/her designee, act to abate graffiti as a public nuisance in accord with this chapter, pursuant to Government Code Section 38773.6, the city may recover the graffiti removal costs by making such costs a special assessment against a parcel of land owned by the minor creating, causing or committing the nuisance, or by the parent or guardian having custody and control of the minor. 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. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment.

B. For purposes of this section, the terms "expense of abatement," "graffiti" and "minor" shall have the same meaning as set forth in Government Code Section 38772.

C. The procedures for recovery of graffiti removal costs against the property of a minor or a parent or guardian of the minor shall be the same as those set forth in Section 9.44.160 of this chapter, applying said procedures to the property of the minor or of the parent or guardian having custody or control of the minor.

D. The graffiti removal costs shall also be a personal obligation of the minor and his or her parent or legal guardian.

(Ord. 525 § 1 (part), 1996)

For each conviction of a person aged thirteen to twenty-one for violating the provisions of this chapter, or any state law pertaining to vandalism of property with a graffiti implement, the city may petition the sentencing court to suspend driving privileges or delay the issuance of driving privileges in accordance with California Vehicle Code Section 13202.6.

(Ord. 525 § 1 (part), 1996)

Graffiti may be removed by any of the following methods:

A. Wherever the city manager, or his/her designee, determines that graffiti as defined in this chapter is located on public or privately owned property within the city so as to be capable of being viewed by a person utilizing any public right-of-way in the city, the city manager is authorized to provide for the removal of the graffiti upon the following conditions:

1. Where a structure is owned by a public entity other than this city, the removal of the graffiti may be authorized only after securing the consent of the public entity having jurisdiction over the structure and such entity executes a release and waiver, approved as to form by the city attorney, and agrees to an assumption of costs incurred by the city for the removal of the graffiti.

2. Except as provided in subsection B, where a structure is privately owned, the removal of the graffiti may be authorized only after securing the consent of the owner and the owner having executed a release and waiver approved as to form by the city attorney.

B. Graffiti which is located on privately owned structures or privately owned real property in the city and which can be viewed by a person utilizing any public right-of-way within the city may be removed by the city at the owner's expense as a public nuisance. This section shall apply under the following circumstances:

1. The private property owner has persuaded, allowed or encouraged the graffiti problem; or

2. The private property owner's consent cannot be obtained and summary removal of the graffiti is required in order to protect the public health, safety and welfare; or

3. The city manager determines that graffiti or other inscribed material has been applied to a privately owned property on three or more occasions during one calendar year and has not been removed.

(Ord. 525 § 1 (part), 1996)

Whenever the city manager determines that graffiti is located on privately owned structures or privately owned real property in the city in violation of this chapter, and it has not been removed, the city manager, or his or her designee, may send, by registered or certified mail, or post, at a conspicuous place on the premises where the graffiti is located, written notice to the owner and to any lessee, occupant or other person having present possession or control of such real property in the city that the graffiti must be removed within ten days from the date of the notice. The notice shall be entitled "Notice to Abate Graffiti."

A. The notice shall be in a form prescribed by the city attorney.

B. If an appeal has been made to the office of the city manager within seven days from the date of the notice to abate graffiti, the city manager, or his designee, shall hold an administrative hearing on the appeal. The decision of the city manager or his designee shall be final and conclusive.

C. If an appeal has not been submitted as set forth in subsection B of this section, or if the appeal has been denied following an administrative hearing, and if the private property owner fails to remove or fails to cause the graffiti to be removed by the designated date, or such continued date thereafter as approved by the city manager, then the city manager shall cause the graffiti to be abated as a public nuisance by the city or its contractor, and the city or its contractor is expressly authorized to enter upon the premises for such purpose.

(Ord. 605 § 1, 2004; Ord. 525 § 1 (part), 1996)

Pursuant to Government Code Sections 38773 and 38773.5, should the city manager abate the graffiti, the city may recover the costs of graffiti removal through an assessment lien against the property on which the nuisance is maintained.

A. Prior to the recordation of an assessment lien against the property for the recovery of abatement and related administrative costs, the city, in accordance with Government Code Section 38773.5, shall provide written notification. Service shall be made in the same manner as a civil subpoena. If after diligent search the owner cannot be found, then the notice may be served by posting a copy of the notice upon the property, in a conspicuous place, for a period of ten days. The notice shall also be published pursuant to Government Code Section 6062 in a newspaper of general circulation that is published in the county in which the property is located. Appeals shall be provided as set forth in subsection B of this section.

B. Between the first and the fifteenth day of June of each year, the city manager shall cause to be published, in a newspaper of the city, a notice that any person affected or aggrieved by any act or determination of the city or the city manager in connection with the provisions of this chapter may appeal to the city council. An appeal shall be in writing and shall be filed with the office of the city clerk prior to the fifteenth day of June. At the next regularly scheduled meeting of the city council after the fifteenth day of June, or from time to time thereafter as may be determined by the council, the city council shall hear and render a decision upon each appeal, and the determination of the city council shall be final and conclusive. In the event any determination of the city manager is modified by determination of the city council or any assessment changed or corrected, the city manager shall cause the correction to be made upon the record showing the assessment.

C. At the expiration of the time for appeal, or upon the determination by the city council of all appeals so filed, and in compliance with the requirements of any determination so made, the city manager shall deliver to the auditor-controller of the county of Santa Barbara an abstract of each lot or parcel of land within the city affected by this section and the amount of each such charge to be placed upon the assessment roll against the respective parcel. Thereafter, the charges shall be of the same character and effect, subject to the same penalties, and shall be collected in the same manner and at the same time as city taxes. The provision of this section shall not apply to any lot or parcel of land if the charge against it has been paid prior to the delivery of the abstract to the auditor-controller.

D. Upon imposition of the assessment by the city council, the city manager shall give notice of imposition of the assessment to the landowner by certified mail, if the landowner's identity can be determined from the county assessor's or county recorder's records, specifying that the property may be sold after three years by the tax collector for unpaid delinquent assessments.

E. Should the city in any action, administrative proceeding or special proceeding to abate a nuisance, elect at the initiation of the proceeding to recover its attorney's fees and costs, the prevailing party in such action, administrative proceeding or special proceeding shall be entitled to recover its attorney's fees and costs.

(Ord. 605 § 2, 2004; Ord. 525 § 1 (part), 1996)

It is unlawful for any property owner to fail to abate graffiti within ten days of the date of notice. In addition to liability for abatement costs as provided in Section 9.44.160, any property owner failing to abate graffiti after notification shall be subject to remedies and penalties pursuant to Chapters 1.06 and 1.08 of this code.

(Ord. 605 § 3, 2004; Ord. 525 § 1 (part), 1996)

Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for a condition that may be abated in accordance with an ordinance enacted pursuant to Government Code Section 38773.5, except for conditions abated pursuant to Health and Safety Code Section 17980, the court may order the owner to pay treble the costs of abatement of the graffiti.

(Ord. 525 § 1 (part), 1996)

The remedies provided in this chapter are in addition to other remedies and penalties available under provisions of applicable ordinances of the city and the laws of the state of California.

(Ord. 525 § 1 (part), 1996)

A. The city may offer a reward in an amount to be established by resolution of the city council for information leading to the arrest and conviction of any person who wilfully damages or destroys any public or private property within the city by the use of graffiti.

B. Claims for rewards under this section shall be filed with the city clerk and shall include all of the following:

1. Specifically identify the date, location, and property damaged or destroyed by the use of graffiti;

2. Identify by name the person or persons who were convicted or confessed to the damage or destruction of property by use of graffiti;

3. Identify the court and the date upon which the conviction occurred or the place and date of the confession;

4. A copy of the statement or date of the reporting to the city that identified the facts, circumstances and person or persons who have been convicted or have confessed to damaging or destroying property by the use of graffiti.

C. No reward shall be given for any claim presented under this section unless and until the city manager, or designee, investigates and verifies the accuracy of the claim, and a conviction or confession is obtained.

D. If the person committing the graffiti is a juvenile, then the custodial parent of the juvenile shall be liable to reimburse the city for any reward paid pursuant to this section.

(Ord. 618 § 1, 2006)