Clayton Municipal Code Ch. 9.20 Graffiti Prevention and Abatement

The City Council hereby finds and declares that:

A. Graffiti is detrimental to the health, safety, and welfare of the community in that it promotes a perception in the community that the laws protecting public and private property can be disregarded with impunity. This perception fosters a sense of disrespect of the law that results in an increase in crime; degrades the community and leads to urban blight; is detrimental to property values, business opportunities, and the enjoyment of life; is inconsistent with the City's community preservation goals and aesthetic standards; and results in additional graffiti and in other properties becoming targets of graffiti unless it is quickly removed from public and private property.

B. Graffiti results in visual pollution and is hereby deemed a public nuisance. Graffiti must be abated as quickly as possible to avoid detrimental impacts on the City and its residents, and to prevent the further spread of graffiti.

C. It is the purpose of this chapter to establish procedures and adopt regulations whereby all public and private property within the City may be maintained free of graffiti.

(Ord. 315, 1994)

Whenever in this chapter the following terms are used, they shall be deemed and construed to have the meaning ascribed to such respective terms in this section:

A. "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 anything other than a solution which can be removed with water after it dries.

B. "City" means the City of Clayton, California.

C. "Deface" includes the application of graffiti to any surface of any building, structure or immobile object.

D. "Felt Tip Marker" means any indelible marker or similar implement with a tip which, at its broadest width is greater than one-eighth (1/8) inch, containing an ink that is not water-soluble or anything other than a solution which can be removed with water after it dries.

E. "Graffiti" includes any inscription, drawing, work, figure or design that is marked, etched, scratched, drawn, painted, pasted to or otherwise affixed to or on the surface of any private or public building, structure, structural component, wall, fence, pavement or any other surface, to the extent that same was not authorized in advance by the owner thereof, or despite such advance authorization, is otherwise unlawful.

F. "Graffiti Implement" means an Aerosol Paint Container, a Felt Tip Marker, or a Paint Stick.

G. "Paint Stick" means a device containing any 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 one-eighth of an inch in width.

H. "Responsible Party" means any person who is the owner or tenant, or who has primary responsibility for control of property, or who has primary responsibility for the repair or maintenance of property.

(Ord. 315, 1994)

It shall be unlawful for any person to apply graffiti upon the surface (notwithstanding the prior condition of such surface) of any public or private building, structure, structural component, wall, fence, pavement or any other surface, to the extent the same was not authorized in advance by the owner thereof, or despite such advance authorization, is otherwise unlawful.

(Ord. 315, 1994)

A. Furnishing. It is unlawful for any person, firm, or corporation, except a parent or legal guardian, to sell, give or in any way furnish, any Graffiti Implement to any minor under the age of eighteen (18) years, unless that person, firm or corporation provides for the supervision of the minor's use of such Graffiti Implement, so as to assure that the minor does not deface any public or private property, or violate any other section of this chapter.

B. Display for Sale. No person, firm or entity engaged in a commercial enterprise ("Seller") shall display for sale, trade or exchange, any Graffiti Implement except in an area from which the public shall be securely precluded without employee assistance.

(Ord. 315, 1994)

A. Possession by Minors. It shall be unlawful for any person under the age of eighteen (18) years to have in his or her possession, whether such minor is or is not in or on an automobile or other form of conveyance, any Graffiti Implement while upon public property or upon private property without the consent of the owner of such private property whose consent is given in advance or whose consent shall be given as to the person's presence while in the possession of a Graffiti Implement.

1. School Exception for Felt Tip Markers. The foregoing provision shall not apply while such person is attending, or traveling to or from a school at which such person is enrolled, if such person is participating in a class at said school which has, as a written requirement of said class, the need to use felt tip markers.

B. Possession in Designated Public Places. No person shall have in his or her possession any Graffiti Implement while engaged in any activity in any public park, playground, swimming pool, or recreational facility, or while loitering in or near an underpass, bridge abutment, storm drain, and other similar types of infrastructure not normally used by the public, except as may be authorized by the City.

(Ord. 315, 1994)

It is unlawful for any Responsible Party to permit property which is defaced with graffiti to remain so defaced for a period of seventy-two (72) hours after notice of same by the City unless (1) said Responsible Party shall demonstrate by a preponderance of evidence that he/she does not have the financial or physical ability to remove the defacing graffiti; or (2) unless 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 seventy-two (72) hours after notice of same.

(Ord. 315, 1994)

A. Graffiti as a Nuisance. The existence of graffiti within the City limits of the City is found to be obnoxious, indecent and offensive, and constitutes a public and private nuisance, and may be abated according to the provisions and procedures herein contained.

B. Graffiti Attracting Surface as a Nuisance. The existence of any surface of a structure on a parcel of land which has been defaced with graffiti after removal more than five (5) times in twelve (12) months is a public and private nuisance, and may be abated by minor modifications thereto, or to the immediate area surrounding same, according to the provisions and procedures herein contained as follows: Said surface or surfaces shall be required to be retrofitted, at the expense of the property owner of said lot, not to exceed a total cost of one percent of the assessed value of the property according to the last equalized county assessment roll, or the supplemental roll, whichever is more current, or at the expense 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. 315, 1994)

Whenever the City becomes aware, or is notified and determines that graffiti is so located on public or privately owned property viewable from a public place within the City, the City shall be authorized, pursuant to Government Code § 53069.3, to use public funds for the removal of same, or for the painting or repairing of same, but shall not authorize to 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/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 agrees to pay for the costs of repainting or repairing the more extensive area.

(Ord. 315, 1994)

A. Securing Owner Consent. Prior to entering upon private property or property owned by a public entity other than the City for the purpose of removal of graffiti, the City shall attempt to secure the consent of the property owner, and a release of the City from liability for private or public property or liability damage.

B. Failure of Responsible Party to Remove or Consent to Removal. If a Responsible Party fails to remove the offending graffiti within the time specified in Section 9.20.060, 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 and Cost Recovery Proceedings for the removal of the graffiti according to the following procedure.

C. Abatement and Cost Recovery Procedures. Notice and Conduct of Due Process Hearing. The City Manager, or his/her designee, ("Hearing Officer") shall give not less than forty-eight (48) hours notice, served in the same manner as summons in a civil action in accordance with Civil Procedure Code Article 3 (commending with Section 415.10) of Chapter 4 of Title 5 of Part 2 (if the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof 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 pursuant to Government Code § 6062) to the Responsible Party or Parties who are responsible for the maintenance of a parcel of property containing graffiti ("Property"), and, if a different person is the owner of record of the parcel of land on which the nuisance is maintained, based on the last equalized assessment roil or the supplemental roll, whichever is more current, then to said owner ("Owner") also, of a "due process" hearing at which said Responsible Party and Owner shall be entitled to present evidence and argue that his/her Property does not contain graffiti.

The notice shall be substantially in the following form:

NOTICE TO REMOVE GRAFFITI (NAME AND ADDRESS OF PERSON NOTIFIED)

As owner, agent, lessee, or other person occupying or having charge or control of the building, lot, or premises at (___________) you are hereby notified that the undersigned has determined that graffiti exists upon the above described premises in violation of Clayton Municipal Code Section 9.20.030.

You are hereby notified that by (___________) you must abate the above condition to the satisfaction of the undersigned, or request an administrative hearing to show cause, if any you have, as to why the condition should not be abated by the City and the expenses thereof charged to your property and if not paid thereafter, made a lien upon the real property described above. You may request an administrative hearing by calling the undersigned at ___________. Abatement is to be accomplished in the following manner:

DATED:___________

By:___________

The determination of the Hearing Officer after the "due process" hearing shall be final and not appealable. If, after the due process hearing, regardless of the attendance of the Responsible Party, Owner or their respective agents, the Hearing Officer determines that the Property contains graffiti viewable from a public or quasi-public place, the Hearing Officer shall give written notice ("Eradication Order") that, unless the graffiti is removed within five (5) days thereafter, or such longer time as the Hearing Officer shall find reasonable, the City shall enter upon the Property, cause the removal, painting over (in such color as shall meet with the approval of the Hearing Officer) or such other eradication thereof ("Eradication Effort") as the Hearing Officer determines appropriate, and shall provide the Responsible Party and Owner thereafter with an accounting of the costs of such Eradication Effort on a "full cost recovery basis".

1. Eradication Effort. Not sooner than the time specified in the Order of the Hearing Officer, the City Manager, or his/her designee, shall implement the Eradication Order, and shall provide an accounting to the Responsible Party, and as appropriate, the Owner, of the costs thereof ("Eradication Accounting"). Service of the Eradication Accounting shall be made by first-class mail, with postage prepaid, marked to the last known address of the Responsible Party and Owner, if appropriate. If said address is not known, then the Eradication Accounting shall be posted in a conspicuous place on the property for a period of ten (10) days.

2. Cost Hearing. The Responsible Party or Owner, if appropriate, may request a due process hearing on the Eradication Accounting before the Hearing Officer, which shall be conducted according to the procedures set forth in subsection (1) ("Cost Hearing"). If the Responsible Party or Owner fails to request a hearing before the hearing Officer on the Eradication Accounting, or if requested, after such a Cost Hearing, the Hearing Officer determines that all or a portion of the Costs are appropriately chargeable to the Eradication Effort, the total amount set forth in the Eradication Accounting, or such amount thereof determined as appropriate by the Hearing Officer, ("Assessed Eradication Charges") shall be due and payable by the Responsible Party within thirty (30) days.

3. Lien. As to such Property where the Responsible Party is the Owner, if all or any portion of the Assessed Eradication Charges remain unpaid after thirty (30) days, pursuant to the authority created by law, including Government Code § 38773, et seq., such portion thereof as shall remain unpaid shall constitute and is hereby declared to constitute a lien on the Property which was the subject matter of the Eradication Effort. The City Manager or his/her designee shall present a Resolution of the Lien to the City Council and upon passage and adoption thereof, shall cause a certified copy thereof to be recorded with the Contra Costa County Recorder's Office.

(Ord. 315, 1994)

A violation of any of the provisions or failure to comply with any of the requirements of this chapter by any person or entity shall constitute an infraction. The person or entity shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation is committed, continued or takes place. The City Attorney may upgrade an infraction complaint to become a misdemeanor complaint at any time.

(Ord. 315, 1994

In lieu of, or as a part of, requesting prosecution of a petition to declare a minor to be a ward of the court under Welfare and Institutions Code § 602 (including but not limited to, offenses which, in the opinion of the Police Chief, constitute a violation of this chapter), or in lieu of prosecuting a violation of this chapter as a crime against an adult, the Police Chief with the approval of(or according to the rules and procedures approved by) the City Manager, shall be authorized to offer said minor or adult an option to perform such community service as the Police Chief deems appropriate, but which community service shall, if offered at all, contains the following minimum elements:

A. The minor shall perform at least thirty (30) hours of community service.

B. At least one of the custodial parents, or if none, guardians, shall be in attendance at least fifty percent (50%) of the period of assigned community service.

C. The entire period of community service shall be performed under the supervision of a community service provider approved by the Chief of Police.

D. Reasonable effort shall be made to assign the subject minor or adult to a type of community service that is reasonably expected to have the most rehabilitative effect on the minor or adult. To the extent that the offense giving rise to the offer of community service constitutes a violation of this chapter, reasonable effort shall be made by the Chief of Police to assign the minor to community service which constitutes in significant part the removal of graffiti.

(Ord. 315, 1994)

Any minor determined to be a ward of the court under Welfare and Institutions Code § 602 as a result of committing an offense in the City shall be required, at the City's option, to perform community service, including graffiti removal service of not less than thirty (30) hours nor more than eighty (80) hours.

(Ord. 315, 1994)

Any parent or other legal guardian who consents to, permits, or otherwise knowingly allows her or his child under the age of eighteen (18) to possess a Graffiti Implement shall be personally liable for any and all costs to any person incurred in connection with the removal of graffiti cause 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.

(Ord. 315, 1994)

Any person who displays a Graffiti Implement in violation of the provisions of this chapter shall be personally liable for any and all costs incurred by any party in connection with the removal of graffiti, or the repair of any property containing graffiti, caused by a minor who has obtained a Graffiti Implement as a direct result of such unlawful display, and used said Graffiti Implement to deface property in violation of this chapter. Said person shall additionally be liable for all attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damages.

(Ord. 315, 1994)

The procedure provided in the provisions of this chapter shall be cumulative and in addition to any other procedures provided in ordinances of this City or by state law for the prevention and abatement of any of the conditions described herein and abatement hereunder shall not prejudice or affect any other action, civil or criminal, for the maintenance of any such condition. This chapter does not preclude the prosecution of any civil remedies available to a victim of graffiti vandalism to his or her property, or the enforcement of any criminal penalties against a person responsible for such vandalism.

(Ord. 315, 1994)

A. Pursuant to Government Code § 53069.5, the City does hereby offer a reward of one hundred fifty dollars ($150.00) for information leading to the arrest and conviction of any person for violation of Section 9.20.030 of this chapter, not to exceed three hundred dollars ($300.00) per incident of graffiti. In the event of multiple contributors of information, the reward amount shall be divided by the City in the manner it shall deem appropriate. 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 with the City Manager or his/her designee, and approved by the City Council at a public meeting. Each claim shall:

1. Specifically identify the date, location and kind of property damaged or destroyed.

2. Identify by name the person who is convicted, or confessed to the damage or destruction of the City property.

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

C. No claim for a reward shall be approved by the City Council unless an authorized representative of the City investigates and verifies the accuracy of the claim and recommends that it be approved. Approval of a reward rests within the sole discretion of the City Council, and this section creates no right or claim against the City by anyone claiming a reward.

D. The person committing the graffiti, and if an unemancipated minor, then the custodial parent of said minor, shall be civilly liable to the City for the reward paid pursuant to this section.

(Ord. 315, 1994)