El Dorado County Municipal Code Ch. 9.50 Graffiti Abatement

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State Law reference— Authority of County to adopt ordinance regulating the sale of aerosol containers of paint or other liquid substances capable of defacing property and governing the placement of graffiti on public or private, real or personal property, Penal Code § 594.5.

This chapter shall be known as the County Graffiti Abatement Ordinance.

(Code 1997, § 9.50.010)

A. It is the purpose of this chapter to authorize the establishment of a program to summarily abate graffiti throughout the unincorporated area of the County.

B. Provisions of State law (Government Code §§ 53069.3 et seq., 25845, 38772 et seq.) authorize the use of County funds to remove, repair or replace public or private property that has been defaced with graffiti or other inscribed material.

C. State law also authorizes the County to establish a procedure to collect abatement and related administrative costs from the persons creating, causing, committing or maintaining any nuisance created by graffiti or other inscribed material.

D. The removal, repair or replacement of property that is defaced by graffiti or other inscribed material may be performed after securing the consent of the owner or possessor of the property or after implementing nuisance abatement proceedings described herein.

E. This chapter does not preclude other civil or criminal actions in regard to the abatement of graffiti or any other inscribed material pursuant to other laws.

(Code 1997, § 9.50.020)

The Board of Supervisors finds that the defacement of property by graffiti or any other inscribed material constitutes a nuisance that presents an imminent danger to the public health, safety and welfare of persons in the County and creates a negative impact on the County. The target of this chapter is graffiti on public or private property that may be viewed by a person utilizing any public right-of-way, including, but not limited to, a road, parkway or alley.

(Code 1997, § 9.50.030)

County funds may be used to remove graffiti and other inscribed material from public or private property within the limits set forth in this chapter and subject to sufficient funds being budgeted for such purpose.

(Code 1997, § 9.50.040)

For the purposes of this chapter, the term "graffiti" means the unauthorized inscribing, etching, scratching, drawing, spraying, painting, design such as marking or unauthorized application of any substance on any public or private real or personal property, or despite advance authorization, is deemed by the Board of Supervisors or any other County officer authorized by law, to be a public nuisance.

(a) Graffiti or other inscribed material shall be prohibited on public or private real or personal property that may be visible from a public right-of-way, including, but not limited to, a road, parkway or alley.

(b) The owner or person in possession or control of private property is prohibited from allowing any graffiti or other inscribed material to be placed upon or remain on any surface, including, but not limited to, structures located on the property for a period in excess of that described in this chapter for notice and removal.

(Code 1997, § 9.50.050)

Whenever the County determines that graffiti is located on public or private property that is capable of being viewed by a person using any public right-of-way, the County shall notify the owner or possessor of the property in writing that a public nuisance exists. If the owner or possessor of the property has been notified and consents to the removal of the graffiti, the County shall be authorized to provide for the removal of the graffiti as follows:

(a) It shall be the owner's responsibility to paint out the graffiti within five calendar days from receipt of the notice of public nuisance or to request that the County remove the graffiti as described in subsection (c) of this section.

(b) The owner or possessor of the property may request paint from the County within five days of receipt of notice. Any paint provided by the County is free of charge but will be limited to a color available to the County and only in an amount to cover the area containing the graffiti or other inscribed material. The owner shall have five days from receipt of paint from the County to cover the graffiti or other inscribed material.

(c) Prior to removal of the graffiti or other inscribed material by the County, or its designated agents, the County shall obtain written consent of the owner and the owner shall execute an appropriate release prepared by the County Counsel. The owner of the property shall be charged for the actual cost incurred by the County to remove the graffiti including administrative costs pursuant to Board policy and any applicable law.

(d) In the event the owner fails or refuses to consent to removal of graffiti and payment of the costs charged to the parties as described herein and pursuant to terms acceptable to the County, the County may commence abatement and cost recovery proceedings for the removal of the graffiti as described in Section 9.50.070.

(Code 1997, § 9.50.060)

(a) Upon order of the Board of Supervisors or upon order of any other County officer authorized by law, any nuisance constituting an immediate threat to public health or safety will be summarily abated.

(b) In the absence of an immediate threat to public health or safety, the Board of Supervisors or a hearing board designated by the Board of Supervisors shall provide a responsible party, including, but not limited to, the property owner and anyone known to be in possession of the parcel, with notice of the nuisance abatement proceedings and an opportunity to be heard prior to abatement of the nuisance and/or cost recovery.

(c) The Board of Supervisors shall make a decision or the hearing board shall make a written recommendation to the Board of Supervisors, which may adopt the recommendation without further notice of hearing or may set the matter for a de novo hearing, after allowing a responsible party including, but not limited to, the owner or possessor of property an opportunity to be heard.

(d) The Board of Supervisors or its designee shall give notice to a responsible party of not less than 48 hours, served in the same manner as summons on a civil action in accordance with Article 3 (commencing with Code of Civil Procedure § 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. A responsible party includes, but is not limited to, the following: Parties who are responsible for the maintenance of a parcel of property containing graffiti ("property") and if a different person, the owner of record of the parcel of land on which the nuisance is maintained based on the last equalized assessment, roll or the supplemental roll, whichever is more current, the possessor of property on which graffiti is located and persons creating graffiti, including the parents and guardians of minors. 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 days and publication thereof in a newspaper of general circulation published in the County in which the property is located pursuant to Government Code § 6062.

1. Notice shall be given to a "due process" hearing at which said responsible party and owner shall be entitled to present evidence and argue that his or her property does not contain graffiti and/or explain why graffiti remains.

2. The determination of the Board of Supervisors 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 Board of Supervisors determines that the property contains graffiti viewable from a public or quasi-public place, the County shall give written notice ("eradication order") that, unless graffiti is removed within five days thereafter, the County shall enter upon the property, cause the removal, painting over or such other eradication thereof ("eradication effort") as the Board of Supervisors 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." Leniency with respect to the five days shall be considered in those cases where a reasonable explanation and/or time frame for its removal are provided as determined by the Board of Supervisors or a hearing board designated by the Board of Supervisors.

(e) Eradication effort. Not sooner than the time specified in the order of the Hearing Officer, the County 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").

(f) Cost hearing. The responsible party or owner may request a cost hearing. A cost hearing is conducted after extending due process to the responsible party and, as appropriate, the owner. After such cost hearing, a Hearing Officer designated by the Board of Supervisors may determine that all or a portion of the costs are appropriately chargeable. The assessed eradication charges shall be due and payable by the responsible party within 30 days. Any amount of assessed eradication charges assessed by the hearing officer which are less than the total amount set forth in the eradication accounting shall be explained by written letter from the hearing officer to the Board of Supervisors.

(g) 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 30 days, pursuant to the authority created by law, including Government Code § 38773 et seq., such portion shall constitute and is hereby declared to constitute a lien on the property which was the subject matter of the eradication effort. Resolution of lien shall be presented to the Board of Supervisors and upon passage and adoption thereof, shall cause a certified copy of the lien to be recorded in the Recorder's office of the county where the property is located.

(h) A graffiti nuisance abatement lien shall be recorded in the office of the County Recorder in the county in which the parcel of land is located. From the date of recording, the lien shall have the force, effect and priority of a judgment lien.

(i) A graffiti nuisance abatement lien or a special assessment authorized by this chapter shall specify the amount of the lien or special assessment, the name of the agency on whose behalf the lien or special assessment is imposed, the date of the abatement order; the street address, legal description, and Assessor's parcel number of the parcel on which the lien or special assessment is imposed; and the name and address of the recorded owner of the parcel.

(Code 1997, § 9.50.070)

The procedure to collect abatement and related administrative costs from the persons creating, causing, committing or maintaining any nuisance created by graffiti or other inscribed material shall be as described in this section. In addition, parents or legal guardians are jointly liable with the minor for costs associated with the abatement of graffiti due to misconduct of their children.

(a) Graffiti abatement costs shall include, but not be limited to, 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 County in identifying and apprehending the minor or persons creating graffiti.

(b) The expense of abatement of any nuisance resulting from graffiti or other inscribed material on the property of another by a minor may result in a lien against the property and a personal obligation of a parent or guardian of the minor.

(c) Notice to the minor and notice to the parent or guardian of the minor shall be made prior to the collection of abatement and related costs and prior to the recordation of a lien on a parcel of land owned by the parent or guardian, pursuant to the requirements of law as set forth in Section 9.50.070(d).

(Code 1997, § 9.50.080)

(a) Procedure to collect abatement and related administrative costs from property owner of record on whose property the graffiti is located.

(b) Nuisance abatement costs shall include, but not be limited to, the costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property and any administrative costs incurred regarding the processing of a lien.

(c) Notice is required prior to recordation of the lien to the owner of record of the land where the graffiti is located, based on the last equalized assessment roll or the supplemental roll, whichever is more current.

(d) Notice to the property owner shall be made prior to the collection of abatement and related costs and prior to the recordation of a lien on a parcel of land pursuant to the requirements of law as set forth in Section 9.50.070(d).

(Code 1997, § 9.50.090)

(a) As an alternative to the lien procedures outlined in Section 9.50.090, the County also establishes the following procedure for the collection of nuisance abatement costs as a special assessment against a parcel of property owned by the property owner on whose property the graffiti is located and against a parcel of property owned by any person creating graffiti or owned by a parent or guardian of a minor who is responsible for creating graffiti.

(b) Notice to the property owner shall be by certified mail if the property owner's identify can be determined from the records of the County Assessor or County Recorder. The notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the Tax Collector or for unpaid delinquent assessments. All laws applicable to the levy, collection and enforcement of taxes shall be applicable to the special assessment subject to any restrictions set forth in special assessment law related to graffiti and other inscribed material nuisance abatement law.

(c) Notice of special assessment against property shall be recorded in the county where the property is located.

(Code 1997, § 9.50.100)

Upon entry of a second or subsequent civil or criminal judgment within a two-year period, a court may order an owner of property to pay treble the costs of the abatement.

(Code 1997, § 9.50.110)

State Law reference— Similar provision, Government Code § 25845.5.