Corte Madera Municipal Code Ch. 9.17 Graffiti Abatement

The town council finds that graffiti, on public and private properties, is a blighting factor on this community's neighborhoods, encourages other acts of malicious vandalism and depreciates the value of the adjacent and surrounding properties.

The council further finds and determines that graffiti is inconsistent with the town's property maintenance goals, and aesthetic standards, and unless quickly removed from public and private properties, other properties soon become the target of graffiti. Further, the existence of graffiti tends to breed community discontentment and criminal activity.

(Ord. 831 § 2 (part), 1998)

For the purpose of this chapter, the following words and terms shall have the below described meanings:

(1) Words and phrases used in this chapter shall have the same meaning as under Penal Code Sections 594 and 594.2, Government Code Sections 38772, 38773.2, and Section 53069.3, unless otherwise defined herein, or where otherwise required by the context, in which case such word or phrase shall have such reasonable meaning as shall give effect to the purposes of this chapter.

(2) "Cost (or costs) of removal" means and includes the costs of removal of the graffiti, or if the graffiti cannot be removed cost effectively, the costs of repair and replacement of property defaced with graffiti, and not the painting, repair or replacement of other parts of the property that were not defaced, and those expenses described in Government Code Section 38722(d)(1).

(3) "Days" means calendar days.

(4) "Graffiti" means "graffiti or other inscribed material" as defined in Government Code Sections 38772 and 53069.3, and Penal Code Section 594.

(5) "Property owner" means and includes the lessee of the property or other person in possession thereof.

(6) "Responsible adult" means a parent or guardian having custody or control of an individual under the age of eighteen years.

(Ord. 831 § 2 (part), 1998)

It is unlawful for any person:

(1) After notice from the town pursuant to this chapter, to fail to remove graffiti on property which can be seen from the public right-of-way or adjacent or neighboring property; or

(2) After notice from the town pursuant to this chapter, to fail to remove graffiti on property which causes a depreciation of property values or is detrimental to the health and welfare of neighborhoods.

(Ord. 831 § 2 (part), 1998)

(a) The violation of any section of this chapter shall be a misdemeanor, punishable in accordance with Section 1.04.010(a) of this code.

(b) Community service in the town may be imposed in lieu of any penalties and punishments imposed as a result of a conviction for or a guilty or nolo contendre plea to a misdemeanor violation of this chapter.

(Ord. 831 § 2 (part), 1998)

The existence of graffiti in the town of Corte Madera is declared to be a public nuisance, and may be summarily abated pursuant to Government Code Sections 38773.1 et seq. and 53069.3, and this chapter.

(Ord. 831 § 2 (part), 1998)

Any person applying graffiti within the town shall have the duty to remove same within twenty-four hours after notice by the town or by the public owner or private owner of the property involved. Failure of any such person to so remove graffiti shall constitute a violation of this chapter. If the notice is given by the town, the manner in which the graffiti is removed shall be subject to town approval. In the event the notice is from the town, it shall contain an admonition that any costs of removal incurred by the town shall be the responsibility of the person(s) being notified and, if not paid by such person(s), may become a lien or special assessment against the property of such person(s). If the graffiti is on private property, the person required to remove it shall obtain consent of the private property owner to go upon that owner's property to remove the graffiti. In the event that the person applying graffiti fails to remove the graffiti or pay for the cost thereof within said twenty-four hours, the amount of the cost of removal shall become a personal obligation of such person and if such costs of removal are incurred by the town, they shall further become a special assessment or lien against the property of such person. The special assessment or lien may be collected at the same time and in the same manner as property taxes as provided in Government Code Section 38773.2 or 38773.6. Any person subject to the provisions of this section may appeal as provided in Section 9.17.110.

(Ord. 831 § 2 (part), 1998)

Where graffiti is applied by an individual under the age of eighteen years, in addition to such individual, the responsible adult shall be responsible for such removal or payment for the cost thereof. In the event that the responsible adult fails to remove the graffiti or pay the cost thereof within seven days after being served with notice to remove the graffiti, the amount of the cost of removal shall become the personal obligation of the responsible adult and if such costs of removal are incurred by the town, they shall further become a lien or special assessment against the property of the responsible adult. In the event the notice is from the town, it shall contain an admonition that any costs of removal incurred by the town shall be the responsibility of the person(s) being notified and, if not paid by such person(s), may become an assessment against the property of such person(s). If the graffiti is on private property, the person required to remove it shall obtain consent of the private property owner to go upon that owner's property to remove the graffiti. Failure of the responsible adult to remove the graffiti described in the notice shall constitute an additional and separate violation of this chapter. The special assessment may be collected at the same time and in the same manner as property taxes as provided in Government Code Section 38773.2 or 38773.6. A responsible adult subject to the provisions of this section may appeal as provided in Section 9.17.110.

(Ord. 831 § 2 (part), 1998)

(a) Whenever the director of public works or his/her designated representative determines that graffiti exists upon property owned by the town, the person applying the graffiti and/or the responsible adult, as the case may be and if known, shall be notified to remove the graffiti in accordance with Section 9.17.060 or 9.17.070, as the case may be. In the event the graffiti is not removed in accordance with such notice or an appeal is filed pursuant to Section 9.17.110, notwithstanding anything to the contrary contained herein, the town may proceed to remove the graffiti at any time after the time specified in such notice(s) has passed. The taking of an appeal under Section 9.17.110 shall not stay the town's power to remove the graffiti or preclude the town from seeking recovery of its costs of removal from the responsible person and/or responsible adult, or imposing a special assessment against such person's or adult's property.

(b) When property is owned by a public entity other than the town, the removal of the graffiti may be authorized by the director of public works or his/her representative, and removal undertaken by town personnel or an independent contractor if:

(1) The other public entity does not have an anti-graffiti rule or law and does not intend to take steps to remove the graffiti, or the other public entity has an anti-graffiti rule or law but does not intend to take steps to remove the graffiti;

(2) The other public entity has provided to the town written consent authorizing the town to remove the graffiti; and

(3) The person applying the graffiti and/or responsible adult, as the case may be and if known, is notified to remove the graffiti pursuant to Section 9.17.060 or 9.17.070 and the removal is not effected in accordance with such notice.

(Ord. 831 § 2 (part), 1998)

(a) If graffiti is applied to private property, the town shall, pursuant to Sections 9.17.060 and/or 9.17.070, first seek to have the graffiti removed by those persons who applied it, and/or their responsible adult(s), if applicable. If such enforcement actions are unsuccessful or if the responsible person and/or adult are unknown, then the town may pursue removal by the property owner him/her/itself.

(b) Private property owners shall remove graffiti from their property within seven calendar days after receiving notification to the property owners by the town to remove such graffiti. Any property owner subject to the provisions of this section may appeal as provided in Section 9.17.110.

(c) Notices to remove graffiti shall be given to private property owners by the town and shall be addressed to the name and address as they appear on the last tax assessment role or in other records maintained by public agencies. Such notice shall state:

(1) The address of the real property on which the graffiti is located;

(2) The description and the general location of the graffiti;

(3) The date by when the graffiti is to be removed;

(4) The name(s) or identity(ies) of the person(s) responsible for removing the graffiti, if known;

(5) The scope of the removal and the manner in which the removal is to take place and the nature of the repair, if any, of the affected property; and

(6) The possibility that the failure to remove the graffiti may cause the property owner's property to be assessed for the costs incurred by the town in removing the graffiti. Notice shall be deemed given by depositing a copy of the notice in the United States mail, certified with postage fully affixed, or personally delivering a copy of the notice to the owner of the property. The service is complete at the time of deposit in the mail or when personal service is effectuated. The failure of any person to actually receive such notice shall not affect the validity of any legal proceedings regarding removal of the graffiti.

(d) The town may remove the graffiti applied to privately owned property only with the consent of the property owner, and if unsuccessful in collecting the costs of removal from the responsible party, the town shall charge the property owner for the cost of removal. If consent is withheld, the town may, in addition to and not in lieu of any other available remedies, abate the graffiti as a nuisance pursuant to Section 9.17.100 or 9.04.010, et seq., and in connection therewith, obtain a warrant or other order to allow the town to enter the property to remove the graffiti.

(e) In the event that the town removes graffiti and the property owner fails to reimburse the town for the cost of removal within thirty days of notice of the amount of such costs, such amount shall become a lien or special assessment against the property.

(Ord. 831 § 2 (part), 1998)

(a) In the event that (i) the responsible person described in Section 9.17.060, (ii) the responsible adult described in Section 9.17.070, and/or (iii) the property owner described in Section 9.17.090, do not remove the graffiti after notice and appeal, if any, the town may remove the graffiti or abate the graffiti as a nuisance.

(b) Notwithstanding anything else herein to the contrary, in the event that (i) the responsible person described in Section 9.17.060, (ii) the responsible adult described in Section 9.17.070, and/or (iii) the property owner described in Section 9.17.090, do not remove the graffiti after notice and appeal, if any (and subject to Section 9.17.080(A)), and in the further event that the town shall abate the graffiti as a nuisance under Sections 9.04.010 through 9.04.140, such nuisance may be ordered abated by the council without any further public hearing.

(c) Except as provided in Section 9.17.080(A), any appeal timely brought under Section 9.17.110 shall stay (i) any removal or abatement action initiated by the town, and (ii) a person's obligation to remove or pay for the costs of removing any graffiti the removal of which is the responsibility of such person pending the outcome of such appeal.

(Ord. 831 § 2 (part), 1998)

(a) The property owner or any other person subject to this chapter may request, in writing, a hearing with respect to any of the duties, responsibilities or liabilities under this chapter before the Twin Cities chief of police within ten days after mailing or delivery of the notice referred to in Section 9.17.060, 9.17.070 or 9.17.090. The chief of police shall schedule a hearing within thirty days of receipt of the request for a hearing. The chief of police shall hear facts and testimony relevant to the hearing and shall not be limited to the technical rules of evidence. The property owner or any other person subject to this chapter may appear at the hearing and/or submit a sworn written statement in time for consideration at the hearing. The chief of police shall notify the property owner or any other person subject to this chapter of the decision within fifteen days of the hearing. The chief of police may delegate any of the authority granted to the chief under this section to an appropriate hearing office.

(b) The property owner or any other person subject to this chapter may appeal the decision of the chief of police by filing a written appeal with the town clerk within ten days of receipt of the decision of the chief of police. The appeal shall be heard within a reasonable time of receipt of the notice of appeal. The town clerk shall give written notice of the time and place of the hearing to the property owner or any other person subject to this chapter. The appeal shall be heard by the town council, which shall not be limited by the technical rules of evidence. The town council may affirm, amend or reverse the decision of the chief of police, and may order the graffiti removed by town forces or at town expense. In making its decision, the town council may consider, among other things, the following factors: (1) the number of times which graffiti was placed on the property of the property owner; (2) whether the property owner took reasonable measures to prevent graffiti from being placed on the property; (3) the cost of removing the graffiti; and/or (4) the cooperation of the property owner with the town toward eradicating the graffiti.

(Ord. 831 § 2 (part), 1998)

Prior to the recordation of any lien or special assessment authorized pursuant to this chapter, notice shall be given to the property owner(s) in accordance with Government Code Section 38773.1, 38773.2 or 38773.5. No lien or special assessment shall be recorded until after such notice has been provided.

(Ord. 831 § 2 (part), 1998)

All liens recorded pursuant to this chapter shall comply with the requirements of Government Code Section 38773.2. Any fee imposed on the town by the county recorder in connection with the processing and recording of any lien hereunder, or the providing of notice to the property owner, may be recovered from the property owner as provided in Government Code Section 38773.2.

(Ord. 831 § 2 (part), 1998)

Whenever this chapter allows for the recovery of costs, such costs may include, but are not limited to, administrative costs, court costs, attorney's fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, and the law enforcement costs incurred by the town in identifying and apprehending the minor.

(Ord. 831 § 2 (part), 1998)

The remedies provided in this chapter are cumulative and are in addition to and not in lieu of any other means of enforcement which are available to the town, including but not limited to, criminal prosecutions, which may be brought against persons violating this chapter.

(Ord. 831 § 2 (part), 1998)

The town may pay to any person who provides information which leads to the arrest and conviction of any person who applies graffiti, a reward as established by council resolution.

(Ord. 831 § 2 (part), 1998)

The town may apply town funds (as defined in Government Code Section 53069.3(3)) to remove graffiti from publicly or privately owned property located within the town and to replace or repair publicly or privately owned property within the town that has been defaced with graffiti that cannot be removed cost effectively.

(Ord. 831 § 2 (part), 1998)

Prior to the entry onto private or public (if other than the town) property by the town for the purpose of graffiti removal, written consent in a form acceptable to the town attorney shall be obtained from the property owner or designated agent for authorization of entry and release of liability. Notwithstanding the foregoing, consent of the property owner or responsible adult shall not be required if the town is authorized by court order to enter the property for the purpose of graffiti removal.

(Ord. 831 § 2 (part), 1998)

A reasonable administrative fee (which may include, without limitation, courts costs, staff time, law enforcement costs and attorney's fees) may be imposed against any person found in violation of this chapter as a part of any abatement hereunder in addition to and not in lieu of any other fine, charge, fee, cost, assessment or payment imposed in connection with any violation of this chapter. Such fee may be included in the costs of removal upon which an assessment may be imposed hereunder.

(Ord. 831 § 2 (part), 1998)