Diamond Bar Municipal Code Ch. 8.20 Graffiti

Footnotes:

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Cross reference— Interference with county property or notices, § 9.00.310 et seq.; pornography and obscene matter, § 9.08.110 et seq.

State Law reference— Authority to provide for removal of graffiti, Government Code § 53069.3.

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Aerosol container means any aerosol based container, bottle, spray device or other mechanism, six ounces or less, which is adapted or made for the purpose of spraying paint, ink, dye or other similar substance.

Bona fide evidence of majority and identity means any document evidencing the age and identity of an individual which has been issued by a federal, state or local government entity, and includes, but is not limited to, a motor vehicle operator's license, a registration certificate issued under the federal Selective Service Act, or an identification card issued by a member of the armed forces.

Felt tip marker means any indelible marker, pen or similar implement which contains a fluid which is not soluble in water and has a flat, pointed or angled tip which at its broadest width is greater than one-eighth inch.

Graffiti means the unauthorized application of paint, ink, chalk, dye or the use of any other instrument capable of defacing, damaging or destroying public and private buildings, structures, or any portion thereof.

Graffiti implement means an aerosol container, a felt tip marker, nail polish, shoe polish, paint stick, etching instrument including but not limited to etching creams and substances, or any other device containing paint, ink, chalk, dye or similar substance which when used or applied is capable of defacing glass, metal, concrete or wood.

Obnoxious graffiti means graffiti which, in the determination of the city manager, has any of the following characteristics:

(1) Insults or incites hatred or contempt of any racial, religious or ethnic group;

(2) Refers to the name of a gang or includes words or symbols associated with a gang or individual;

(3) Insults or threatens any identifiable individual or group;

(4) Includes obscene or indecent language or depictions;

(5) Constitutes an aesthetic blight or eyesore to a neighborhood;

(6) Tends to attract more graffiti; and

(7) Promotes criminal activity or promotes retaliatory action by an individual.

Paint stick or graffiti stick means any device containing a solid form of paint, chalk, wax, epoxy, or other similar substance that is not water soluble and is capable of being applied to a surface by pressure, and upon application, leaving a mark at least one-eighth inch in width.

(Ord. No. 2(1993), § 2(A), (B), (E)—(I), 4-6-93; Ord. No. 03(2002), § 1, 3-5-02)

Cross reference— Definitions generally, § 1.00.070.

(a) It is unlawful for any person to apply graffiti to any public or privately owned structure located on public or privately owned real property within the city.

(b) It shall be unlawful for any owner, lessee, occupant or other person having present possession of a lot or parcel of land within the city to permit graffiti to remain upon such lot or parcel of land or to maintain any structure affixed to such lot or parcel of land with graffiti on such structure or any portion thereof, for a period in excess of seven calendar days following service by the city of a notice to abate the graffiti. Each day the graffiti is maintained beyond the initial seven-day period hereby constitutes a separate offense and is subject to the penalties set forth in section 8.20.080.

(Ord. No. 2(1993), § 3, 4-6-93)

No person under the age of 18 years and not in the presence of a parent or legal guardian shall have in his possession a graffiti implement while in any public park, playground, swimming pool, public recreational facility or any public right-of-way in the city unless necessary in order to participate in any city-sponsored function. This section shall not apply to authorized employees of the city, nor shall it apply to the authorized agents or contractors under contract with the city.

(Ord. No. 2(1993), § 4, 4-6-93)

The city manager or his designee shall develop a graffiti removal program to assist property owners in the expeditious removal of graffiti from their property. Notwithstanding any other provision of this chapter, the city shall be authorized to recover its costs incurred in the removal of graffiti from private property if:

(1) The removal of graffiti or other inscribed material from privately owned real property exceeds four requests or a maximum of 600 square feet per privately owned real property during one calendar year.

(2) Where the removal of graffiti has been mandated pursuant to section 8.20.050, the owner of the affected property shall be required to reimburse the city for such services.

(3) Nothing in this chapter shall prohibit the city manager or his designee from waiving the provisions of this section if it can be determined that the affected property owner has demonstrated a conscientious effort to prevent graffiti from occurring on their property as exhibited by, but not limited to, the installation of security devices such as surveillance cameras, security lighting, sprinklers linked to motion sensors; protective or covering landscaping; graffiti-resistant building materials; or the application of graffiti-resilient paint.

(Ord. No. 2(1993), § 5, 4-6-93)

Graffiti may be removed by any of the following methods:

(1) Wherever the city manager determines that graffiti or other inscribed material constitutes obnoxious graffiti and is so 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 or other inscribed material upon the following conditions:

a. In removing the graffiti or other inscribed material, the painting or repair of a more extensive area shall not be authorized.

b. Where a structure is owned by a public entity other than this city, the removal of the graffiti or other inscribed material 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 or other inscribed material.

c. Where a structure is privately owned, the removal of the graffiti or other inscribed material 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.

(2) Graffiti which is located on privately owned structures on privately owned real property within 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 pursuant to section 8.20.060. This section shall apply under the following circumstances:

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

b. The private property owner's consent cannot be obtained.

c. The city manager determines that the removal of graffiti or other inscribed material from a privately owned property has exceeded four requests or a maximum of 600 square feet per privately owned real property during one calendar year.

(Ord. No. 2(1993), § 6, 4-6-93)

(a) Whenever the city manager determines that graffiti is being maintained upon premises within the city in violation of section 8.20.020, the city manager shall 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 of a lot or parcel of land within the city that the graffiti must be removed within seven days from the date of service of the notice. The notice shall be entitled, "Notice to Abate Graffiti," in letters not less than one inch in height, and shall cite this chapter as authority for such abatement. The notice shall contain a general description of the property on which the graffiti is located.

(b) The notice shall be on city letterhead in substantially the following form:

Notice To Abate Graffiti

Notice is hereby given that under the provisions of section 3 of Ordinance No. 2(1993) you are required at your expense to remove or paint over the graffiti located on the property commonly known as _____ , Diamond Bar, California, which is visible to public view, within seven days after the date of service of this notice. The graffiti is visible to public view and therefore constitutes a public nuisance. If you fail to comply with this order, the city or its contractor will enter upon your property and abate the public nuisance. The cost of the abatement by the city or its contractor will be assessed upon your property and such costs will constitute a lien upon the land until paid.

All persons having any objection to, or interest in the matter are hereby notified to submit an appeal to the office of the city manager within seven days from the date of this notice.

At the conclusion of this seven-day period, the city may proceed with the abatement of the graffiti on your property at your expense without further notice."

(c) 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.

(d) If an appeal has not been submitted as set forth in subsection (c) 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. No. 2(1993), § 7, 4-6-93)

(a) Should the city manager be required to abate the graffiti as a public nuisance, as set forth in subsection 8.20.060(d), the city may recover, pursuant to Government Code § 38773, the costs of abatement through the assessment of a lien against the property on which the nuisance is maintained.

(b) Prior to the recordation of a lien against property for the recovery of abatement and related administrative costs, the city, in accordance with Government Code §§ 38773.1 or 38773.5, shall provide written notification, by registered or certified mail, to the property owner that a lien will be assessed against their property and that such costs will constitute a lien upon the land until paid. The notice of lien shall for purposes of this chapter be in form substantially as follows:

NOTICE OF LIEN

Pursuant to California Government Code § 38773 and the authority of Ordinance _____ of the City of Diamond Bar, the City Manager of the City of Diamond Bar did on or about the _____ day of ________, 199___ cause the removal of graffiti at the premises hereinafter described in order to abate a public nuisance on the real property; and the City Council of the City of Diamond Bar did on the _____ day of ________, 199___ assess the cost of such abatement upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that the City of Diamond Bar does hereby claim a lien for such costs of abatement in the amount of the assessment: the sum of _____ dollars; and the same shall be a lien upon the real property until the same has been paid in full and discharged of record.

The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Diamond Bar, County of Los Angeles, State of California, and particularly described as follows: ___________.

Dated this _____ day of ________, 199___.

_____ City Clerk, City of Diamond Bar

(c) Between July 1 and July 15 of each year, the city manager shall cause to be published in the official 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 July 15. At the next regular scheduled meeting of the city council after July 15, 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 council shall be final and conclusive. If 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.

(d) 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 county auditor 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 provisions 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 county auditor.

(Ord. No. 2(1993), § 8, 4-6-93)

In addition to any costs incurred by the city for the abatement of graffiti from private property, failure to voluntarily abate graffiti after notification shall result in the following penalties:

(1) The failure of any person failing to remove graffiti within the prescribed seven-day period, as set forth in subsection 8.20.020(b) hereby constitutes an infraction and is punishable by a fine of $100.00 upon first conviction thereof.

(2) Any person convicted of violating subsection 8.20.020(b) for a second time shall be guilty of an infraction and shall be punished by a fine of $250.00.

(3) Any person convicted of violating subsection 8.20.020(b) for a third time or any subsequent number of times shall be deemed guilty of an infraction and shall be punished by a fine not exceeding $500.00.

(4) Any person previously convicted three times under this section, violating the provisions of subsection 8.20.020(b), shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in subsection 8.20.130(b).

(Ord. No. 2(1993), § 9, 4-6-93)

The violation of any of the provisions of this chapter or any state law pertaining to vandalism of property with a graffiti implement shall constitute a nuisance and may be abated by the city through a civil process by means of a restraining order, preliminary or permanent injunction or in any other manner available to the city under provisions of applicable ordinances or state law.

(Ord. No. 2(1993), § 10, 4-6-93)

(a) It shall be unlawful for any person to sell or give any graffiti implement to any individual under the age of 18 years, who is not accompanied by a parent or legal guardian, without first obtaining bona fide evidence of majority and identity.

(b) Any person offering for sale to the public any graffiti implement shall keep, store and maintain such material in a place that is locked and secure, or otherwise inaccessible except by special request.

(c) Any person engaged in the retail sale of any graffiti implement must display at a conspicuous location a legible sign measuring not less than 12 inches by 12 inches, with letters at least one-half inch in height which states:

"It is unlawful for any person to sell or give to any individual under the age of 18 years, who is not accompanied by a parent or legal guardian, any implement or other device capable of being used to deface property. Any person who maliciously defaces real property is guilty of vandalism which is punishable by a fine, imprisonment, or both."

(d) Notwithstanding the provisions of this chapter, it shall be unlawful, pursuant to Penal Code § 594.1, for any person, except a parent or legal guardian, to sell or give or in any way furnish to another person, who is under the age of 18 years, any aerosol container containing six ounces or more of paint, without first obtaining bona fide evidence of majority and identity.

(e) Any person who violates any provision of this section shall be guilty of a misdemeanor as set forth in section 8.20.130.

(Ord. No. 2(1993), § 11, 4-6-93)

The city council may, by resolution, offer and pay a reward for information leading to the apprehension and conviction of any person who places graffiti or other inscribed material upon public or privately owned structures within the city. In addition to any fines levied by the city for violation of this chapter, any person who has damaged property by inscribing graffiti on public or private property shall be liable for the amount of any reward paid pursuant to this chapter and Government Code § 53069.5.

(Ord. No. 2(1993), § 12, 4-6-93)

Pursuant to Civil Code § 1714.1(b), where graffiti is applied by an unemancipated minor, the parents or legal guardian of the minor shall be jointly and severally liable for payment of civil damages resulting from the misconduct of the minor in an amount not to exceed $10,000.00 for each such offense.

(Ord. No. 2(1993), § 13, 4-6-93)

(a) It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this chapter.

(b) Except as provided in section 8.20.080, any person violating any provision of this chapter, or failing to comply with any of its requirements, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1.04.010.

(c) Notwithstanding the penalties set forth in subsection (b) of this section, any person who maliciously defaces, damages or destroys property with a graffiti implement is guilty of vandalism, pursuant to Penal Code § 594, and, upon conviction thereof, shall be punished by imprisonment in the state prison or in a county jail for a period not to exceed one year, or by a fine of $5,000.00, but no more than $50,000.00, depending upon the severity and the amount of defacement, damage or destruction to property, or by both such fine and imprisonment.

(Ord. No. 2(1993), § 14, 4-6-93)

(a) Upon conviction of any person for violation of section 8.20.020, or any state law pertaining to vandalism of property with a graffiti implement, the city shall petition the sentencing court to impose community service time, pursuant to Penal Code § 640.6. The sentencing court may require the performance of community service within the city in addition to any monetary penalties imposed. If the sentencing court approves community service, the city shall request any adult or emancipated minor convicted of vandalism, as defined by Penal Code § 594(a)(1), to:

(1) Complete a minimum of 24 hours, but no more than 48 hours of community service cleaning up, removing, and repairing property damaged by graffiti for the first conviction; and

(2) Complete 48 hours, but no more than 96 hours of community service cleaning up, removing, and repairing property damaged by graffiti for each subsequent conviction.

(b) Any person who is under the age of 18 when he violates any provision of this chapter or any state law pertaining to vandalism of property with a graffiti implement, and is found to be a person described in Welfare and Institutions Code § 602 by reason of the commission of vandalism, may be required to perform community service time pursuant to Welfare and Institutions Code § 728. For any minor adjudicated guilty of vandalism, the city will petition the juvenile court and the court may, in addition to any other penalties imposed by the city, require the unemancipated minor to provide the necessary labor to clean up, repair, or replace defaced, damaged or destroyed property, or otherwise make restitution to the property owner.

(c) If a minor is personally unable to pay any fine levied for violating any provision of this chapter or is otherwise unable to make restitution for damages, the minor's parent or legal guardian shall be liable for payment of the fine or restitution. If the parent or legal guardian cannot make restitution, the sentencing court may waive payment of the fine or community service time by the parent or legal guardian upon finding of good cause. If the sentencing court waives payment of the fine by the parent or legal guardian, the city shall petition the sentencing court, and the court, at the court's option, may order the parent or legal guardian to provide the necessary labor, equal to the number of hours assigned to the minor adjudicated guilty of violating any provision of this chapter, to clean up, repair, or replace property damaged by the unemancipated minor.

(Ord. No. 2(1993), § 15, 4-6-93)

For each conviction of a person aged 13 to 21 for violation of section 8.20.020, or any state law pertaining to vandalism of property with a graffiti implement, the city shall petition the sentencing court to suspend existing driving privileges or delay the issuance of driving privileges in accordance with Vehicle Code § 13202.6.

(Ord. No. 2(1993), § 16, 4-6-93)