Coachella Municipal Code Ch. 8.48 Graffiti

Footnotes:

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Editor's note— Section 1, Exhibit A of Ord. No. 1042, adopted Apr. 11, 2012, amended ch. 8.48 in its entirety to read as herein set out. Former ch. 8.48 pertained to the same subject matter, consisted of §§ 8.48.010—8.48.060 and derived from the prior code; and Urgency Ord. No. 1041, adopted Mar. 28, 2012.

A. Graffiti on public and private property is a blighting factor which not only depreciates the value of the property, but also the value of the adjacent and surrounding communities. Government Code Section 53069.3 authorizes this city to enact ordinances to provide for use of city funds to remove graffiti from public and privately owned permanent structures located within the city. The city council finds that graffiti or related inscribed material is obnoxious and pursuant to Government Code Section 53069.3 authorizes that a program be instituted allowing for the use of city funds to remove graffiti on public and private property. It is the intent of the city council to provide for the prohibition of the placement of graffiti on public and private property as set forth in this chapter.

B. The city council finds and determines that graffiti is obnoxious and a public nuisance, and, unless promptly removed from public and privately owned properties, tends to remain and to attract more graffiti; other properties are then the target of graffiti, with the results that entire neighborhoods, and, indeed, the community is depreciated in value and becomes a less desirable place to live, shop and visit. The city council therefore determines that it is appropriate that the city develop new procedures to implement the provisions of Section 53069.3 of the Government Code and provide for the expedient removal of graffiti from both public and privately owned property under the circumstances set forth hereinafter. The city council further determines that it is appropriate to provide regulations relating to the display for sale of aerosol paint containers and marking pens and to provide penalties relating to possession of graffiti implements for the purpose of engaging in graffiti vandalism.

C. Government Code Sections 38772, 38773.2, and 38773.6 authorize cities to adopt ordinances making the expense of abating graffiti caused by certain minors or other persons:

(1) A personal obligation of the minor (and of the parents or guardians having custody and control of the minor) and/or other persons, and

(2) A lien or special assessment against property of the minor (and property of the parents or guardians having custody and control of the minor) and/or other persons.

(Ord. No. 1042, § 1(Exh. A), 4-11-12)

"Aerosol paint container." Any aerosol container which is adapted or made for the purpose of spraying paint or other substances capable of defacing property.

"Abatement and related administrative costs." All city costs associated with damage caused by graffiti, including, but not limited to, court costs, attorney's fees, cost of removal of graffiti or other inscribed material, cost of repair and replacement of property defaced by graffiti that cannot be removed cost effectively, and law enforcement time incurred by or charged to the city for identifying and apprehending the person(s) who caused the graffiti.

"Felt tip marker." Any indelible marker or similar implement with a tip which at its broadest width is one-eighth inch or greater, containing an ink that is not water-soluble.

"Glass cutters." Any tools or instruments designed to cut or etch glass surfaces.

"Graffiti." The unauthorized inscribing, spraying of paint or making of ink, chalk, dye or other similar substances on public or private buildings, structures and places.

"Graffiti implement." Any implement capable of marking a surface to create graffiti including, but not limited to, any aerosol paint container, paint 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 scarring glass, metal, concrete or wood.

"Graffiti removal costs." Such costs expressly include, but are not limited to, all city staff time, police investigative time, city attorney time and fees, and any court costs incurred in connection with the civil prosecution of any claims for damages.

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

"Minor." A person under eighteen (18) years of age.

"Other persons." Any person eighteen (18) years and older.

"Owner's representative." Any person or entity expressly authorized by the owner of any property to permit another person to place inscriptions, words, figures or designs upon such property, or any person or entity in lawful possession of any property, whose right of possession includes the authority to permit or allow inscriptions, words, figures or designs to be placed upon such property.

"Paint or graffiti stick." 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.

"Responsible party." Any party made liable pursuant to this chapter for the city's costs of removing graffiti in the city. Such removal costs include, but are not limited to, all city staff time, police investigative time, city attorney time and fees, and court costs. Responsible parties include, but are not limited to the following:

(a) Any person who creates graffiti;

(b) Any owner or person legally in possession of real property on which graffiti exists; and

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

"Spray actuator." 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. No. 1042, § 1(Exh. A), 4-11-12)

A. Graffiti Prohibited.

1. It is unlawful for any person to paint, chalk or otherwise apply graffiti on public or privately owned structures located on public or privately owned real property within this city.

2. It is unlawful for the owner of any private property to permit graffiti to remain so as to be capable of being viewed by a person utilizing any public right-of-way in the city, such as a road, parkway or alley; provided the city has given the property owner written notice to remove the graffiti within a period of three calendar days, and the three-day period has lapsed.

B. Possession by Minors.

1. It shall be unlawful for any minor to possess any aerosol paint container, spray actuator, felt tip marker, paint or graffiti stick, gum label, or glass cutter while on public or private property without the consent of the property owner or the person in lawful possession of the property. Any law enforcement officer who observes a violation of this section may take immediate possession of the aforementioned graffiti implements.

2. The foregoing provision shall not apply while the person is attending or traveling to or from a school at which the person is enrolled, if the person is participating in a class at said school which has as a written requirement of said class, the need to use an aerosol paint container, spray actuator, felt tip marker, paint or graffiti stick, gum label, or glass cutter.

C. Possession in Public Places, Parks and Buildings.

1. No person shall have in his or her possession any aerosol paint container, spray actuator, felt tip marker, paint or graffiti stick, gum label, or glass cutter capable of defacing property while in any public park, playground, swimming pool or recreation facility, public building or other public place other than a highway, street or alley, except authorized employees or agents of the city or persons having the authorization of the city manager.

D. Possession with Intent to Deface, Mark or Damage Property.

1. It shall be unlawful for any person to possess any graffiti implement for the purpose of defacing, marking or damaging any public or privately owned property without the express consent of the owner of such property or the owner's representative.

E. Sale of Aerosol Containers of Paint and Wide Tip Markers.

1. No person shall sell or cause to be sold to any person under the age of eighteen (18) years any aerosol container of paint or wide-tip marker.

2. Evidence that a person, his or her employee, or agent, demanded and was shown bona fide evidence of majority and acted upon such evidence of majority in a transaction or sale shall be a defense to any criminal prosecution thereof.

3. Any person who owns, manages, or operates a place of business wherein aerosol containers of paint and wide-tip markers are sold 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 paint or any other liquid is guilty of vandalism which is punishable by a fine, imprisonment, or both."

F. Storage and Display of Aerosol Paint Containers and Marking Pens.

1. Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol paint containers, or felt tip marker or marker pens and paint sticks, or similar implements shall store or cause such containers or pens to be stored in an area viewable by, but not accessible to, the public in the regular course of business without an employee assistance, pending legal sale or disposition of such containers or pens. It is the intent of this section to permit, but not to require, the viewing of aerosol paint containers and felt tip marker or marker pens and paint sticks or similar implements while they are stored or displayed pending retail sale.

(Ord. No. 1042, § 1(Exh. A), 4-11-12)

Whenever the city manager, or his/her designee, determines that graffiti is located on public property the city shall provide for the removal of the graffiti, and/or the use of a an environmentally friendly, cost effective, and aesthetically pleasing way to combat the reoccurrence of graffiti. Whenever the city manager, or his/her designee, determines that graffiti is located on private property so as to be capable of being viewed by a person utilizing any public right-of-way, the city shall be authorized to provide for the removal of the graffiti as follows:

A. The city shall provide paint free of charge to any city property owner with the intent to abate graffiti on his/her property. Upon receiving such a request the city will provide the owner of the property with paint in the amount necessary to cover the specific area containing the graffiti. It shall be the owner's responsibility to determine the color of paint necessary and to paint out the graffiti within a twenty-four-hour warning period plus a forty-eight-hour period for enforcement.

B. A "Notice to Abate Graffiti" shall be issued to the property owner. The notice shall be entitled, "Notice to Abate Graffiti," and shall cite this chapter as authority for such abatement. The notice shall contain a general description of the graffiti and a general description of the property on which the graffiti is located, sufficient to identify the location of the property. The notice shall inform the owner of the property that the graffiti must be abated within a twenty-four-hour warning period plus a forty-eight-hour period for enforcement, from the date of service on the notice.

1. The notice to abate graffiti will be served by posting the notice at a conspicuous place on the premises where the graffiti is located or at the abutting public right-of-way;

2. The notice shall be deemed served at the time of posting;

3. If graffiti is not voluntarily abated the property shall be fined in accordance with Section 3.24.020 of the city's Municipal Code and the city shall cause the graffiti to be abated. The costs to the city for the abatement will be assessed and recovered by the city in the same manner as set forth in Section 8.48.50 of this code.

C. In circumstances where the city is abating graffiti on private property the city shall not authorize nor undertake to provide for the painting or repair of any more extensive area than where the graffiti is located.

D. Prior to the removal of graffiti on private property, the city shall obtain written consent of the owner and the owner shall execute an appropriate release prepared by the city attorney. The owner of the property shall be charged only for the actual cost incurred by the city to remove the graffiti as set forth in Section 8.48.50 of this code.

E. In circumstances where the city manager, or his/her designee seeks to provide for the use of a an environmentally friendly, cost effective, and aesthetically pleasing way to combat the reoccurrence of graffiti; the use of a synthetic ivy and vine system that creates a realistic and aesthetically true representation of natural foliage will be encouraged. The synthetic ivy and vine system must provide a congruent vegetation facade to closely mimic natural vegetation. The use of artificial ivy must also minimize water use and eliminate the need to water surrounding landscaping. In these circumstances, the following minimum standards will be implemented:

1. Artificial vine strands that are fire-retardant and contain ultraviolet blocking chemicals. Artificial vines must be high-strength, plastic coated, and contain integrated wire for support. Artificial vines must utilize low density polyethylene resin — LDPE — One hundred (100) percent recycled.

2. Tile ivy squares with leaf clusters that are fire-retardant and contain ultraviolet blocking chemicals. High-strength grid & leaf clusters must be high-strength, plastic coated, and utilize low density polyethylene resin — LDPE — One hundred (100) percent recycled.

(Ord. No. 1042, § 1(Exh. A), 4-11-12; Ord. No. 1128, § 1, 11-14-18)

A. An invoice for abatement and related administrative costs pursuant to Sections 8.48.40 and 8.48.030(A) of this code shall include all of the following information:

1. A statement notifying the recipient that he/she has been determined by the city to be responsible under Chapter 8.48 of the city's Municipal Code for the city's expenses of removing certain graffiti in the city and/or repairing or replacing property damaged by such graffiti;

2. The location and description of the graffiti for which abatement cost recovery is sought;

3. The date by which the invoice must be paid and the fact that if he or she does not request a hearing or pay the amount of costs owing by the dates indicated, then the city will proceed to collect the debt through any lawful means including, but not limited to, the imposition of a lien or assessment following the procedures of Government Code §§ 38772, 38773, 38773.1, 39773.2, 38773.5, and 38773.6;

4. A statement notifying the recipient of his/her right to request an administrative hearing within ten (10) days of receipt of the invoice regarding liability and/or the amount of costs sought, and the fact that the time period to pay the invoice will be tolled pending the outcome of the hearing;

5. A statement notifying the recipient that if he/she does not pay the invoice or request a hearing within the time allowed, then the city's determinations regarding liability and costs will become final and not appealable to any other city authority and the city will proceed with lawful collection methods.

B. Pursuant to California Civil Code § 1714.1(b), any parent or legal guardian having custody or control of a minor who knowingly permits, or by insufficient control, allows the minor to possess a graffiti implement without supervision thereof shall be jointly and severally liable with such minor for any and all costs incurred in connection with the removal of any graffiti caused by the minor, including all abatement costs, attorney's fees and court costs resulting from the civil prosecution of any claim for damages, not to exceed twenty-five thousand dollars ($25,000.00), pursuant to the amount set by the California Judicial Council in accordance with California Civil Code § 1714.1(c). The city shall be entitled to seek full cost recovery from the parent or legal guardian of a minor found to be guilty of violating any provision of this chapter.

C. The city shall serve the invoice in one of the following ways:

(1) By personal service;

(2) By both regular first class mail and certified mail with return receipt requested; or, if neither of the previous two methods is available or successful in a given case,

(3) By some other method reasonably calculated to provide actual notice to the recipient.

If mail service is used, then the return receipt shall constitute evidence of the date the invoice was received. If the certified mail is not accepted, then the invoice will be deemed to have been received by regular mail three days after its mailing.

D. Failure to comply with any of the foregoing requirements shall not render the invoice or other cost recovery proceedings defective if they meet minimum constitutional standards for due process.

(Ord. No. 1042, § 1(Exh. A), 4-11-12)

A. Any person sent an invoice for abatement or related administrative costs pursuant to Section 8.48.040 of this code is entitled to an administrative hearing regarding liability and/or the amount of costs sought to be recovered, if timely requested. A request for a hearing shall be timely if it is received by the city no later than the close of business on the tenth calendar day following receipt of the invoice. A timely request for a hearing tolls the time for payment of the invoice until the recipient has been notified of the hearing officer's decision.

B. If a hearing is timely requested, the city shall send the party requesting the hearing written notice of the time, date and location of the hearing. The notice shall be served in the same manner as the invoice and shall be reasonably calculated so as to give the recipient at least three days' advance notice of the hearing. Notice of the hearing officer's final decision after the hearing shall be similarly served.

C. The scope of an administrative hearing shall be limited to either or both of the following issues:

(1) Liability for costs; and

(2) The amount of costs sought to be recovered.

The party requesting the hearing shall be entitled to submit evidence on either or both issues, which shall be duly considered by the hearing officer provided it is either presented during the hearing or received by the city manager or his/her designee no later than the close of business on the day before the hearing. No formal rules of evidence shall apply. The party requesting the hearing shall be entitled to attend the hearing but such attendance shall not be mandatory.

D. The hearing officer shall be the city manager or his/her designee. The hearing officer's decision shall be final and nonappealable to any other city authority. Failure to timely request a hearing waives any right to the hearing and renders the determinations reflected in the invoice similarly final and nonappealable.

(Ord. No. 1042, § 1(Exh. A), 4-11-12)

A. Pursuant to California Penal Code Section 594, a person convicted for acts of vandalism including defacing property with graffiti may be subject to additional punishment imposed by the court. Such punishment imposed by the court may include the following:

1. If the amount of defacement, damage or destruction is four hundred dollars ($400.00) or more, vandalism is punishable by imprisonment for up to one year, or by a fine of up to ten thousand dollars ($10,000.00).

2. If the amount of defacement, damage or destruction is less than four hundred dollars ($400.00), vandalism is punishable by imprisonment for up to one year, or by a fine of up to one thousand dollars ($1,000.00), or by both a fine and imprisonment.

3. If the amount of defacement, damage or destruction is less than four hundred ($400.00) and the defendant has been previously convicted of vandalism or affixing graffiti, the vandalism is punishable by imprisonment for up to one year, or by a fine up to five thousand dollars ($5,000.00), or by both a fine and imprisonment.

B. These remedies are in addition to any other costs incurred or recovered by the city, and payment of these costs shall not in any way limit, preclude or restrict any other right, remedy or action otherwise available to the city.

(Ord. No. 1042, § 1(Exh. A), 4-11-12)

A. A reward in an amount established by resolution of the city council is authorized, offered and may be paid by the city to any person who provides information leading to the determination of the identify of, and the apprehension of, any person who willfully or maliciously paints, mars or defaces any public or private structure located on private or public property within the city.

B. The exact amount of the reward to be paid by the city shall be determined by the city council after receipt of a report from the city manager indicating that information was received leading to the determination of the identity of, and the apprehension of, a person who willfully or maliciously painted, marred or defaced a structure located on public or private property located within the city, and indicating the final disposition of such matter. No law enforcement officer, municipal officer, official or employee of the city shall be eligible for such reward.

(Ord. No. 1042, § 1(Exh. A), 4-11-12)