Fairfield Municipal Code Art. X Graffiti Removal and Enforcement

For the purposes of this chapter, the following terms shall have these ascribed meanings:

(a)

Adhesive Sticker

means any sheet of paper, fabric, plastic or other material with an adhesive, paste, or gummed backing, which, when applied or affixed to any surface, either creates a permanent contact or is not easily removable without the use of solvents.

(b)

Aerosol paint container

means any aerosol container, regardless of the material from which it is made, that is adapted or made for the purpose of spraying paint, undercoating, spray insulation, or other substance capable of defacing property.

(c)

City employee

means a city code enforcement officer or other individual designated by the chief of police.

(d)

Costs of the abatement

may include, but are not limited to, court costs, attorney’s fees, costs of removal of the graffiti or other inscribed material, costs of repair or replacement of defaced real or personal property, administrative costs, and law enforcement costs incurred by the city and/or any other public agency. The prevailing party shall recover attorney’s fees only in those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorney’s fees, and in no case shall an award of attorney’s fees to a prevailing party exceed the amount of reasonable attorney’s fees incurred by the city in the action or proceeding.

(e)

Etching cream

means any caustic cream, gel, liquid, or solution capable, by means of a chemical action, of defacing, damaging, or destroying hard surfaces in a manner similar to acid.

(f)

Etching tool

means any sharp or pointed instrument that is capable of etching or marking glass, plastic, wood, metal, or concrete surfaces, including, but not limited to, picks, scribes, awls, chisels, markers, and etchers, or any masonry or glass drill bit, carbide drill bit, glass cutter, grinding stone, etching cream or acid etching solution.

(g)

Exterior surface

means any building, wall, fence, tree, sidewalk, curb, storage container, vehicle, building material, sign, pole, temporary facility, large waste container, portable toilet, structure or real or personal property.

(h)

Felt tip marker

means any broad-tipped indelible marker pen or similar implement containing ink or other pigmented liquid that is not water-soluble.

(i)

Graffiti

means any inscription, word, figure, mark, adhesive sticker or design that is written, sprayed, marked, etched, scratched, engraved, drawn, painted, labeled, pasted, applied or affixed on any surface of public or private real or personal property within the city to the extent the same was not authorized in advance by the owner or occupant thereof.

(j)

Graffiti implement

means any implement capable of marking, scarring, damaging, or defacing any surface to create graffiti, including, but not limited to, aerosol paint containers, felt tip markers, paint sticks, etching cream, etching tools, adhesive stickers, spray actuators, or any other similar implement.

(k)

Graffiti perpetrator

means any individual who causes, commits, solicits or commands another person in, or aids or abets in the application of graffiti.

(l)

Paint stick

means any device containing a solid form of paint, chalk, wax, epoxy, or other similar substance capable of being applied to a surface by pressure and that, upon application, leaves a visible mark on the surface at least one-sixteenth (1/16) of an inch in width or is not water soluble.

(m)

Removal of graffiti, graffiti removal, abatement of graffiti, and graffiti abatement

include the repair or replacement of the portion of the real or personal property defaced by graffiti in the event that graffiti cannot be removed cost effectively.

(n)

Responsible party

means any person who owns, possesses, occupies, or otherwise has responsibility for the repair or maintenance of property on which graffiti exists.

(o)

Spray actuator (also known as a spray tip, nozzle, or button)

means an object or device that is capable of being attached to an aerosol or other paint container for the purpose of spraying the substance contained therein.

(Ord. No. 2011-14, § 1)

(a) It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged, given, loaned, or otherwise furnished any graffiti implement to anyone under the age of eighteen (18) years without the written consent of his or her parent or legal guardian.

(b) It shall be unlawful for any person to possess any graffiti implement, with the intent to use or apply graffiti, while in or upon any public facility, park, playground, swimming pool or recreational area, other than a highway, street, alley, or way, owned or operated by the city or any other public entity, including property owned by a school district, or while within fifty (50) feet of a public wall or fence, underpass, bridge abutment, storm channel, or similar types of infrastructure, unless otherwise authorized by the city or the public entity owning or operating the public property. This section shall not apply to authorized employees of the city or other public entity or to an individual or authorized employee of an individual, agency or company under contract with the city or other public entity and acting within the scope of that contract.

(c) A city employee is authorized to post notices at appropriate locations indicating that, pursuant to California Penal Code Section 594.1(d), no person shall carry on his or her person in plain view to the public etching cream or an aerosol container of paint while in any city-owned facility, park, playground, swimming pool or recreational area, other than a highway, street, alley, or way, without prior permission of an authorized city employee.

(d) It shall be unlawful for any person under the age of eighteen (18) years to possess any graffiti implement while in or upon any public facility, park, playground, swimming pool, recreational area or other public place or upon private property without consent of the owner or occupant of such private property. The provisions of this section shall not apply to the possession of felt tip markers by a minor attending or traveling to or from a school at which the minor is enrolled if the minor is participating in a class or activity at the school that formally requires the possession of felt tip markers. The burden of proof in any prosecution for violation of this section shall be upon the minor to establish the need to possess a felt tip marker.

(Ord. No. 2011-14, § 1)

(a) In approving tentative or parcel maps, subdivision maps, conditional use permits, variances, or other discretionary land use entitlements, the city may impose conditions reasonably related to the control of graffiti, the mitigation of the impacts of graffiti, or both.

(b) In approving encroachment permits or license agreements, the city may impose conditions reasonably related to the control of graffiti, the mitigation of the impacts of graffiti, or both. Such conditions may include, without limitation, any or all of the following:

(1) Require installation and use of anti-graffiti materials, as approved by the director of community development or his or her designee, on the encroaching object or structure.

(2) Require immediate removal of any graffiti from or near the encroaching object or structure.

(3) Provide right of access by city employees and agents to abate graffiti from or near the encroaching object or structure.

(4) Supply the city with sufficient matching paint or antigraffiti material on demand for use in the abatement of graffiti by the city.

(Ord. No. 2011-14, § 1)

(a) Pursuant to Section 53069.5 of the California Government Code, the city may offer a reward for information leading to the apprehension and conviction of any person who places graffiti on any public or private real or personal property in such amounts as approved by the city council. In the event of multiple contributors of information, the city manager shall divide the reward amount in a manner he or she deems appropriate.

(b) The city manager shall specify the manner in which claims for rewards under this section shall be filed with the city, and such claims shall be filed accordingly.

(c) The graffiti perpetrator shall be liable and reimburse the city for any rewards paid pursuant to this section and, if that person is an unemancipated minor, the parent(s) or legal guardian(s) having custody and control of said minor shall be jointly and severally liable for any rewards paid pursuant to this section.

(d) No law enforcement officer, municipal officer, official or employee of the city shall be eligible for a reward made pursuant to this section.

(e) The city manager shall not allow a claim for a reward unless the accuracy of the claim has been investigated and verified and the city manager determines that the requirements of this section have been satisfied. The city manager shall have full discretion as to whether the city shall pay the award or a portion thereof to the informant.

(Ord. No. 2011-14, § 1)

(a) It shall be unlawful for any person to cause, or aid or abet in the application of, graffiti onto any surface on any public or private real or personal property.

(b) It shall be unlawful for any person to permit or maintain graffiti on any surface of any public or private real or personal property.

(c) Each day that graffiti is maintained or remains present constitutes a new and separate offense and is subject to all penalties set forth in this municipal code.

(Ord. No. 2011-14, § 1)

The existence of graffiti within the city limits constitutes a public and private nuisance and may be abated according to the provisions and procedures contained in this chapter.

(Ord. No. 2011-14, § 1)

(a) Any graffiti perpetrator shall remove the graffiti in a manner prescribed by a city employee within twenty-four (24) hours after notice by the city employee. Failure of any graffiti perpetrator to remove graffiti shall constitute an additional violation of this chapter. Where an unemancipated minor is the graffiti perpetrator, the parent(s) or legal guardian(s) having custody and control of the minor shall also be responsible for graffiti removal in accordance with the city employee’s instructions.

(b) The responsible party must cause immediate removal of the graffiti on the property, matching the area to the paint color of the neighboring wall, and may not permit or maintain graffiti on the property for a period in excess of 48 hours after service of notice by a city employee regarding the graffiti on the property.

(Ord. No. 2011-14, § 1)

(a) Whenever a city employee determines that graffiti is located on public property or on private real or personal property so as to be visible from any adjacent property (private or public), street, sidewalk, alley, other public right-of-way or other area open to the public, the city employee may provide for the use of city funds for the abatement of graffiti upon the following conditions:

(1) The responsible party signs an agreement to reimburse the city for the costs of the abatement within thirty (30) days of the city employee submitting an accounting of the expenses and costs.

(2) In abating the graffiti, the city employee shall not authorize painting, repair or replacement of an area more extensive than where the graffiti is located, except where the city owns the exterior surface and the city employee determines that a more extensive area must be repainted, repaired or replaced, or where the responsible party agrees to pay for the costs of repainting, repairing or replacing a more extensive area.

(3) Where the exterior surface is owned by a public entity other than the city or is privately owned, the city employee may authorize the removal of graffiti only after securing the consent of the public entity having jurisdiction over the exterior surface or the responsible party for the privately owned property, and only after such entity or responsible party executes an appropriate release and right of entry form permitting such graffiti removal.

(b) The city shall have no obligation to match paint colors or otherwise meet aesthetic requirements when it abates graffiti.

(c) As an alternative to the procedure provided in subsection (a) of this section, the city employee may abate the graffiti as a public nuisance in accordance with the procedure set forth in section 12.1009.

(Ord. No. 2011-14, § 1)

(a) If the city employee cannot obtain the consent of the responsible party, the city employee may cause the abatement of graffiti which is located on a private property within the city and which can be viewed from any adjacent private or public property, street, sidewalk, alley, or other public right-of-way or other area open to the public at the responsible party’s expense as a public nuisance pursuant to the following conditions:

(1) The city employee shall issue a 72-hour notice of intention to abate the graffiti as a public nuisance to the responsible party of the affected property and shall personally serve such notice on the responsible party. Service shall be made on the day and time as written on the notice and by affidavit, the original of which the city employee shall file with the city clerk. The responsible party shall have 72 hours from the time of service of the notice to remove the graffiti or be subject to abatement of graffiti by the city and assessment of the costs of the abatement as a lien or special assessment on the subject property.

(2) If the city employee cannot personally serve the responsible party with the notice of intention to abate the graffiti, the city employee may otherwise serve the notice in any manner of service allowed pursuant to California Government Code Section 38773.1(b), and must adjust the amount of hours in which the responsible party shall remove the graffiti or timely appeal in accordance with that statute, or by posting a copy of the notice upon the property in a conspicuous place for 72 hours.

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

(b) Failure of the city manager to receive a timely appeal constitutes a waiver of the right to contest a notice of intention to abate. In this event, the notice of intention to abate is final and binding. If an appeal is timely filed, the city employee shall hold a hearing on the objections to the abatement within five (5) days of receiving the appeal. Notice of the decision of the city employee shall be given as provided in subsection (a) of this section for the notice of intent to abate graffiti. If the city employee denies the appeal, the responsible party shall have 72 hours to remove the graffiti from the time of notice of the decision of the city employee, matching the area to the paint color of the neighboring wall. The decision of the city employee shall be final.

(c) If no appeal is filed, or if the appeal is denied following a hearing, and if the responsible party fails to cause the graffiti to be removed by the designated date and time or such continued date and time thereafter as the city employee approves, then the city employee shall cause the graffiti to be abated by city forces or private contract, and the city or its private contractor may enter upon the premises for such purposes after obtaining a warrant authorizing the entry upon the property for abatement of the graffiti. The city shall have no obligation to match paint colors or otherwise meet aesthetic requirements when it abates graffiti.

(Ord. No. 2011-14, § 1)

(a) In a circumstance where the city employee determines that urgent abatement is required for the health and safety of residents, and where the city employee cannot obtain the consent of the responsible party, the city employee may cause the abatement of graffiti which is located on a private property within the city and which can be viewed from any adjacent private or public property, street, sidewalk, alley, or other public right-of-way or other area open to the public at the responsible party’s expense as a public nuisance pursuant to the following conditions:

(1) The city employee shall issue a 5-hour notice of intention to abate the graffiti as a public nuisance to the responsible party of the affected property and shall personally serve such notice on the responsible party. Service shall be made on the day and time as written on the notice and by affidavit, the original of which the city employee shall file with the city clerk. The responsible party shall have 5 hours from the time of service of the notice to remove the graffiti or be subject to abatement of graffiti by the city.

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

(b) Failure of the city manager to receive a timely appeal constitutes a waiver of the right to contest a notice of intention to abate. In this event, the notice of intention to abate is final and binding. If an appeal is timely filed, the city employee shall hold a hearing on the objections to the abatement within five (5) days of receiving the appeal. Notice of the decision of the city employee shall be given as provided in subsection (a) of this section for the notice of intent to abate graffiti. If the city employee denies the appeal, the responsible party shall have 72 hours to remove the graffiti from the time of the personally served notice of the decision of the city employee, matching the area to the paint color of the neighboring wall. The decision of the city employee shall be final.

(c) If no appeal is filed, or if the appeal is denied following a hearing, and if the responsible party fails to cause the graffiti to be removed by the designated date and time or such continued date and time thereafter as the city employee approves, then the city employee shall cause the graffiti to be abated by city forces or private contract, and the city or its private contractor may enter upon the premises for such purposes after obtaining a warrant authorizing the entry upon the property for abatement of the graffiti. The city shall have no obligation to match paint colors or otherwise meet aesthetic requirements when it abates graffiti. The city shall not recover costs for this type of abatement.

(Ord. No. 2011-14, § 1)

(a) The city employee shall keep an accounting of and may hold a hearing regarding the expenses and costs of the abatement of the graffiti in accordance with all required procedures.

(b) If the city employee served the notice of intention to abate the graffiti in any manner of service allowed pursuant to California Government Code Section 38773.1(b), and if the city held a hearing pursuant to subsection (a) of this section, the city employee may elect to recover the costs of abatement by lien in accordance with section 12.1012 of this chapter, by special assessment in accordance with section 12.1013 of this chapter, or in any other manner provided for or authorized by law.

(Ord. No. 2011-14, § 1)

Pursuant to California Government Code Sections 38773.1 and 38773.2, the city employee may elect that the costs of the abatement, as confirmed by the city council, shall constitute a lien against: the property on which the graffiti was maintained; the property of the graffiti perpetrator; and/or, if the graffiti perpetrator is a minor, the property of the parent(s) or legal guardian(s) having custody and control of the minor. The following procedure is required:

(a) Prior to the recordation of the lien, the city employee shall issue notice of the lien to the owner of record of the parcel of land, based on the last equalized assessment roll or the supplemental roll, whichever is more current. Notice of the lien shall be served in any manner of service allowed pursuant to California Government Code Sections 38773.1(b) or 38773.2(b), as may be amended from time to time.

(b) If the total costs of the abatement are not paid to the city in full within ten (10) days after the date of service of the notice, the city clerk or his or her designee may record, in the county recorder’s office in the county in which the parcel of land is located, a lien, which, from the date of recording, shall have the force, effect, and priority of a judgment lien and shall continue in full force and effect until the entire amount due is paid in full.

(c) The lien shall specify: the amount of the lien; the city as the agency on whose behalf the lien 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 is imposed; and the name and address of the recorded parcel owner.

(d) If the lien is discharged, released or satisfied, either through payment or foreclosure, the city clerk or his or her designee shall record notice of the discharge containing the information specified in subsection (c) of this section as to the lien and any other lien recorded against other parties pursuant to the same incidence of graffiti. Any such liens and releases of liens shall be indexed in the grantor-grantee index.

(e) The city may bring an action to satisfy a lien through foreclosure.

(f) If the county recorder assesses any fee to the city for processing and recording the lien and providing notice to the property owner, the city shall recover this amount from the property owner as a part of the foreclosure action to enforce the lien.

(Ord. No. 2011-14, § 1)

Pursuant to California Government Code Sections 38773.5 and 38773.6, the city employee may elect that the costs of the abatement, as confirmed by the city council, shall constitute a special assessment against: the property on which the graffiti was maintained; the property of the graffiti perpetrator; and/or, if the graffiti perpetrator is a minor, the property of the parent(s) or legal guardian(s) having custody and control of the minor. The following procedure is required:

(a) The city employee shall send notice by certified mail to the property owner if the owner’s identity can be determined from the county assessor’s or county recorder’s records. This notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three (3) years by the tax collector for unpaid delinquent assessments. Failure of the property owner to receive notice shall not affect the tax collector’s power of sale.

(b) If the total costs of the abatement are not paid to the city in full within ten (10) days after the date of service of the notice, the city employee may cause the costs of the abatement to be charged to the owner of the subject lot or parcel on the next regular tax bill. The special assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same penalties, procedures and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the cost of the abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the cost of abatement shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection.

(c) Notices or instruments relating to the abatement proceeding or special assessment may be recorded.

(Ord. No. 2011-14, § 1)

For the purposes of civil damages, including court costs and attorney’s fees to the prevailing party, the parent(s) or legal guardian(s) having custody and control of a minor shall be personally liable for any act of willful misconduct by a minor that results in graffiti. The parent(s) or legal guardian(s) having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct, including any and all costs to the city incurred in connection with the removal of said graffiti, not to exceed twenty-five thousand dollars ($25,000), pursuant to California Civil Code Section 1714.1.

(Ord. No. 2011-14, § 1)

Upon completion of the work required to abate graffiti on public property, the costs of the abatement may either be assessed pursuant to sections 12.1011 through 12.1013 of this chapter or be submitted to the district attorney or local law enforcement in order to obtain restitution from a criminal defendant, including from a minor and the parent(s) or guardian(s) having custody and control of the minor.

(Ord. No. 2011-14, § 1)

The city may petition a sentencing court to impose any or all of the following additional penalties or conditions of any grant or probation, diversion, deferred entry of judgment, or other court supervision (including upon a determination that a minor is to be a ward of the court as a result of committing an act of vandalism or graffiti) upon conviction:

(a) Assess fines in accordance with chapter 1 of this municipal code. In the case of a minor, the parent(s) or legal guardian(s) having custody and control of the minor shall be jointly and severally liable with the minor for the payment of all fines.

(b) For an individual who is 13 years or older in age, suspend or delay the issuance of a driver’s license, pursuant to California Vehicle Code Section 13202.6.

(c) Order community service with a request that:

(1) The graffiti perpetrator shall perform not less than forty (40) hours of community service for the first offense, not less than eighty (80) for the second offense, and not less than one hundred twenty (120) for a third or subsequent offense;

(2) If the graffiti perpetrator is a minor, at least one parent or guardian having custody and control of the minor shall be in attendance for a minimum of fifty percent (50%) of the assigned community service; and

(3) Reasonable effort be made to assign the graffiti perpetrator to a type of community service that is reasonably expected to have the most rehabilitative effect on the graffiti perpetrator, including, if possible, community service that involves graffiti removal.

(d) Pursuant to California Government Code Section 38773.7, upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property or a person described as a “minor” or “other person” in California Government Code Section 38772(d)(3) is responsible for graffiti, impose treble the costs of the abatement.

(Ord. No. 2011-14, § 1)

Any person violating any provision of this chapter shall be guilty of a misdemeanor, unless at the discretion of the city attorney or district attorney, the violation is reduced to an infraction.

(Ord. No. 2011-14, § 1)

The remedies provided in this chapter are in addition to and do not supersede or limit any other remedies and penalties available under provisions of other applicable City ordinances, the laws of the State of California, or the laws of the United States.

(Ord. No. 2011-14, § 1)