Fillmore Municipal Code Ch. 15.25 Graffiti

A. Section 53069.3 of the Government Code authorizes the city to provide for the use of city funds to remove graffiti or other inscribed material from publicly or privately owned real or personal property located within the city. The city council finds that graffiti, on public and private properties, is a blighting factor in communities within the city, encourages other acts of malicious vandalism, causes an increase in crime and depreciates the value of the adjacent and surrounding properties.

B. Section 38772 of the Government Code authorizes a city to provide for the summary abatement of graffiti at the expense of the minor or other person creating, causing, or committing the nuisance. The city may make the expense of abatement of the nuisance a lien, or alternatively a special assessment, against property of the minor or other person and a person obligation against the minor or other person pursuant to Government Code Section 38773.2 or 38773.6.

C. The council further finds and determines that graffiti is obnoxious, is inconsistent with the city's property maintenance goals, aesthetic standards and unless it is quickly removed from public and private properties, other properties soon become the target of graffiti.

(Ord. 685 § 1 (part), 1993)

(Ord. No. 19-912, § 2, 8-13-2019)

The following words, phrases and terms, as used in this chapter, shall have the meanings as indicated:

"Aerosol paint container" means any aerosol container six ounces or less net weight contents, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint or other substances capable of defacing property with permanent, indelible or waterproof ink, paint or other liquid.

"Expense of abatement" includes, but is not 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 city, county, or city and county in identifying and apprehending the minor or other person.

"Glass etching tool" means any professional etching tool or glass cutter.

"Graffiti" means:

(a) Any act which results in the altering or defacing of any real or personal property through the use of paint, spray paint, markers, paint sticks, glass etching tools, objects or other substances capable of destroying property, which acts shall include, but not be limited to, the writing, defacing, marring, inscribing, scratching, painting or affixing of other markings on buildings or structures, including, but not limited to, walls, fences, signs, retaining walls, driveways, walkways, sidewalks, curbs, curbstones, street lamp posts, hydrants, trees, electric light or power or telephone or telegraph poles, fire alarms, drinking fountains, parking meters, trash receptacles or mail boxes.

(b) Any act which results in the altering or defacing of any real or personal property through the use of paint, spray paint, markers, paint sticks, glass etching tools, objects or other substances capable of destroying property, which is offensive to a reasonably sensitive person.

"Graffiti implement" means an aerosol paint container, an indelible marker, a paint stick, a glass etching tool, or any similar device.

"Indelible marker" means any marker, pen or similar implement with a tip which, at its broadest width, is greater than one-eighth inch, containing a fluid which is not soluble in water.

"Paint stick" means a device containing a solid form of paint, chalk, wax, epoxy, or other similar substance which is not water soluble, capable of being applied to a surface by pressure, and upon application, leaving a mark at least one-eighth of an inch in width, visible from a distance of twenty feet.

"Responsible adult" means a parent or legal guardian of an individual under the age of eighteen years. A responsible adult may also include an agent of the parent or legal guardian provided said agent is over eighteen years of age.

(Ord. 685 § 1 (part), 1993)

(Ord. No. 19-912, § 3, 8-13-2019)

(a) It is unlawful for any person to apply graffiti upon any wall, rock, street, bridge, building, fence, gate, structure, tree or other real or personal property, whether owned publicly or privately, without the permission of the owner, lessee or operator of such property.

(b) It is unlawful for any person who owns or is otherwise in control of any real property within the city to permit or allow graffiti to be placed upon or remain on any permanent structure located on such property when the graffiti is visible from the street or other public or private property.

(c) Any individual who is found guilty of violating any provisions of this chapter shall pay restitution to the property owner, in addition to authorized penalties. If the violator is a minor, the parent or guardian shall be responsible for payment of restitution.

(Ord. 685 § 1 (part), 1993)

It is unlawful for any person other than a responsible adult to sell, exchange, give, loan or in any way furnish to any person under the age of eighteen years any graffiti implement.

(Ord. 685 § 1 (part), 1993)

(a) No person, firm or entity engaged in a commercial enterprise ("seller") shall display for sale, trade or exchange, any graffiti implement capable of defacing property except in an area which may be viewable by, but from which the public shall be securely precluded without employee assistance. Two such acceptable methods for displaying such items for sale shall be by containment in:

(1) A completely enclosed cabinet or other storage device which shall be permanently affixed to a building or building structure and which shall, at all times except during access by authorized representatives, remain securely locked; or

(2) In an enclosed area behind a sales or service counter from which the public is precluded from entry.

(b) All persons offering for sale markers with a marking tip of one-quarter inch or more in width shall keep such markers in a location that is in the constant view of the employees, agents or other authorized representatives selling such markers.

(Ord. 685 § 1 (part), 1993)

(a) No person, firm, or entity engaged in a commercial enterprise shall store any graffiti implement capable of defacing property except in an area which may be viewable by, but is not accessible to, members of the public because it is either:

(1) A completely enclosed room which shall, at all times except during access or substantial occupancy by the owner or an authorized adult representative of the owner remain securely locked; or

(2) A completely enclosed cabinet or other storage device which shall be permanently affixed to a building structure and which shall, at all times except during access by the owner or an authorized adult representative of the owner, remain securely locked.

(b) For the purposes of this section, an owner or authorized representative of the owner shall be deemed to have substantial occupancy of a room even during short periods of absence if the room is part of a larger structure which is occupied by the owner.

(c) Enforcement Policy. It shall be the intention of the city to enforce this provision against the "wrongful storage" only when its violation has caused or contributed to an act of vandalism by a third party.

(Ord. 685 § 1 (part), 1993)

Any person who violates section 15.25.030 of this code shall be personally liable for any and all costs incurred in connection with the removal of any graffiti caused by that person, including all abatement costs, attorneys' fees and court costs to the prevailing party, removal costs, costs of repair and/or replacement, and the law enforcement costs incurred by the city in identifying and apprehending the person. The city is authorized to initiate a legal action to enforce this section, or to recover these costs by any other means provided by law. Recovery of attorneys' fees and court costs by the prevailing party shall be limited to 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 attorneys' fees, and in no case shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding. Disposition of a criminal prosecution relating to placement of graffiti does not preclude the city from seeking full cost recovery as provided herein.

(Ord. 685 § 1 (part), 1993)

(Ord. No. 19-912, § 4, 8-13-2019)

Pursuant to California Civil Code Section 1714.1(b) and Government Code Section 38772(b), each parent or legal guardian having custody and control of a minor who places graffiti on any publicly or privately owned real or personal property located within the city, including, but not limited to, a structure, wall, fence or other work of improvement, or natural and manmade object, 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, attorneys' fees and court costs to the prevailing party, removal costs, costs of repair and/or replacement, and the law enforcement costs incurred by the city in identifying and apprehending the minor. The liability of each parent or guardian shall not exceed the amount authorized by California Civil Code Section 1714.1(c), which may revised from time to time by the California Judicial Council. The city is authorized to initiate legal action to enforce this section, or to recover these costs by any other means provided by law. Recovery of attorneys' fees and court costs by the prevailing party shall be limited to 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 attorneys' fees, and in no case shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding. Disposition of a criminal prosecution relating to placement of graffiti does not preclude the city from seeking full cost recovery as provided herein.

(Ord. No. 19-912, § 5, 8-13-2019)

Upon the entry of a second or subsequent civil or criminal judgment within a two-year period finding an owner of property, minor or other person is responsible for a condition that may be abated in accordance with this chapter, the city may request the court order treble damages pursuant to Government Code Section 38773.7.

(Ord. No. 19-912, § 6, 8-13-2019)

Any person who places graffiti on any publicly or privately owned real or personal property located within the city, including, but not limited to, a structure, wall, fence or other work of improvement, or natural and manmade object, shall be liable for a civil penalty not to exceed one thousand dollars for each violation. The civil penalty may be sought in addition to any other remedy. The city is authorized to seek recovery by any means authorized by law, including by a civil lawsuit. The parent or legal guardian having custody and control of a minor offender shall be jointly and severally liable with the minor for penalties assessed pursuant to this section.

(Ord. No. 19-912, § 7, 8-13-2019)

It is unlawful for any person under the age of eighteen years who is not accompanied by a responsible adult to have in his or her possession any graffiti implement:

(1) Upon a public property, unless the person is attending or traveling to or from a school at which the person is enrolled, and the person is participating in a class at said school which has, as a written requirement of the class, the need to use such a graffiti implement;

(2) Upon private property without the consent of the owner, tenant or operator of such private property.

(Ord. 685 § 1 (part), 1993)

Any person, organization, company, firm or association engaged in the retail sale of glass etching tools, paint sticks, aerosol containers of paint and other liquid substances, or markers with a marking tip of one-quarter inch or more in width, capable of defacing property must display at the location of retail sale a sign, in letters at least three-eighths of an inch high, clearly visible and legible to employees and customers which states as follows:

IT IS UNLAWFUL FOR ANY PERSON TO SELL OR GIVE TO ANY INDIVIDUAL UNDER THE AGE OF EIGHTEEN YEARS, WHO IS NOT ACCOMPANIED BY A RESPONSIBLE ADULT, ANY GLASS ETCHING TOOL, PAINT STICK, AEROSOL CONTAINER OF PAINT OR OTHER LIQUID SUBSTANCE OR MARKERS WITH A MARKING TIP OF ONE-QUARTER INCH OR MORE IN WIDTH, CAPABLE OF DEFACING PROPERTY.

(Ord. 685 § 1 (part), 1993)

(a) General. Any person applying graffiti within the city who is eighteen years of age or older shall have the duty to remove the graffiti in a manner approved by the city within twenty-four hours after receiving notice by the city or the private owner of the property involved. Any person under the age of eighteen years applying graffiti within the city shall have the duty to remove the graffiti in a manner approved by the city within the presence of the minor's parent or legal guarding within the period/time proscribed by the city's graffiti removal unit supervisor.

Any person responsible for applying graffiti within the city must immediately report to the city's graffiti removal unit supervisor for materials and instructions for proper removal.

the notice to the person applying graffiti shall be in writing and shall be addressed and served in the manner provided in section 15.25.180 below. Failure of any person to so remove graffiti shall constitute an additional violation of this chapter.

(b) Whenever the superintendent of public works or his or her designated representative determines that graffiti exists upon property owned by the city, it shall be removed as soon as possible. When property is owned by a public entity other than the city, the removal of the graffiti may be authorized by the superintendent of public works or his or her representative and removal undertaken by city personnel or independent contractor only after securing written consent of the public entity having jurisdiction over the property.

(c) Whenever the city becomes aware, or is notified and determines that graffiti is so located on public or privately owned property viewable from a public or quasi-public place within the city, the city shall be authorized to use public funds for the removal of same, or for the painting or repairing of same, but shall not authorize or undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located, unless the city manager, or his or her designee, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the responsible party agrees to pay for the costs of repainting or repairing the more extensive area.

(Ord. 685 § 1 (part), 1993)

(Ord. No. 19-912, § 8, 8-13-2019)

(a) Prior to entering upon private property or property owned by a public entity other than the city for the purpose of removal of graffiti, the city shall attempt to secure the consent of the property owner and a release of the city from liability for private or public property or liability damage.

(b) If a responsible party fails to remove the offending graffiti within the time herein specified, or if the city shall have requested consent to remove or paint over the offending graffiti and the responsible party shall have refused consent for entry on terms acceptable to the city consistent with the terms of this section, the city shall commence abatement and cost recovery proceedings for other removal of the graffiti.

(Ord. 685 § 1 (part), 1993)

(a) Any trash receptacle, gas, telephone, water, sewer, cable, trash collection and other utility, except electric utility, operating in the city shall paint their above-surface metal fixtures with a uniform paint type and color which meets with the approval of the city manager.

(b) All encroachment permits issued by the city shall, among such other things, be conditioned on:

(1) The permittee applying an anti-graffiti material to the encroaching object of a type and nature that is acceptable to the city manager, or his or her designee;

(2) The permittee immediately removing any graffiti;

(3) The right of the city to remove graffiti or to paint the encroaching object; and

(4) The permittee providing the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object containing graffiti.

(c) In approving tentative or parcel maps, conditional use permits, variances, or other similar land use entitlements, the city shall consider imposing any or all of the following conditions, or other similar or related conditions, at the public hearing required by law for approval of the tentative map, conditional use permit, variance or other similar land use entitlement:

(1) Developer shall apply an anti-graffiti material, if possible, of a type and nature that is acceptable to the city manager, or his or her designee, to such of the publicly-viewable surfaces on the improvements to be constructed on the site deemed by the city manager, or designee, to be likely to attract graffiti ("graffiti-attracting surfaces");

(2) Developer shall grant, prior to resale of any of the parcels which are within the territory of said map, the right of entry over and access to such parcels, upon forty-eight hours' posting of notice, by authorized city employees or agents, to the city for the purpose of removing or "painting over" graffiti from graffiti-attracting surfaces previously designated by the director, and the right to remove such graffiti;

(3) Developer shall, for a period of two years after the resale of their final lot, provide the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of designated graffiti-attracting surfaces; and

(4) Developer shall, either as part of the conditions, covenants and restrictions, or as separate covenants recorded against individual lots, prior to resale of same, covenant, which covenant shall run with the land and be for the benefit of the city, in a form satisfactory to the city, that the owner of the lots shall immediately remove any graffiti placed thereon.

(Ord. 685 § 1 (part), 1993)

(a) Any applicant for design review approval, conditional use permit, special use permit, unclassified use permit, development agreement, or other form of development or building permit shall, to the extent deemed feasible by the city manager, or his or her designee, have designed any building structures visible from any public or quasi-public place in such a manner to consider prevention of graffiti, including, but not limited to, the following:

(1) Use of a protective coating to provide for the effective and expeditious removal of graffiti;

(2) Use of additional lighting;

(3) Use of non-solid fencing;

(4) Use of landscaping designed to cover large expansive walls such as ivy or similar clinging vegetation; and

(5) Use of architectural design to break up long continuous walls or solid areas.

(b) Retro-fitting Existing Graffiti-Attracting Surfaces; Nonresidential Structures. This may be incorporated in any order issued during an abatement hearing.

(1) The owner of property on which is located a surface of a structure other than residential which has been defaced with graffiti more than five times in twelve months, or the immediate area surrounding said surface, shall permit the city to enter upon and make such modifications thereto, at the city's cost, which modifications shall include such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof;

(2) Any surface of a structure on a parcel of land placed in any land use other than residential which has been defaced with graffiti more than five times in twelve months, or the immediate area surrounding said surface, shall be required to be retrofitted, at the cost of the property owner of said lot, with such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof. In exercising the authority hereunder, the city may not impose a cost on the property owner greater than three times the cost of one year's expense to the property of graffiti removal.

(Ord. 685 § 1 (part), 1993)

It is declared that graffiti is obnoxious and a nuisance. It is further declared that any surface of a structure on a parcel of land which has been defaced with graffiti after removal more than five times in twelve months shall constitute a graffiti-attracting surface and is a nuisance.

(Ord. 685 § 1 (part), 1993)

Reward. The city may pay to any person who provides information which leads to the arrest and conviction of any person who applies any drawing, inscription, figure or mark, commonly known as graffiti, to a surface of real or personal property, a reward as established from time to time by council resolution. The amount of any reward paid pursuant to this section may be sought from the person arrested and convicted as restitution in addition to any other restitution associated with the removal of graffiti.

(a) Claims for Rewards.

(1) Contents. Claims for rewards under this section shall be filed with the city clerk. Each claim shall:

(A) Specifically identify the date, location and kind of property damaged or destroyed;

(B) Identify by name the person who was convicted or confessed to the damage or destruction of city property;

(C) Identify the court and the date upon which the conviction occurred or the place and the date of the confession;

(2) Investigation and Verification. No claim for reward shall be allowed by the city council unless an authorized representative of the city investigates and verifies the accuracy of the claim and recommends that it be allowed;

(3) Liability. The person committing the graffiti, or if an unemancipated minor, the custodial parent of said minor, shall be liable for reward paid pursuant to this section;

(4) Multiple Contributors. In the event of multiple contributors of information, the reward amount shall be divided by the city in the manner it shall deem appropriate.

For the purposes of this section, diversion of the offending violator to a community service program or a plea bargain to a lesser offense shall constitute a conviction.

(Ord. 685 § 1 (part), 1993)

(a) A violation of any provision of this chapter is a misdemeanor and shall be punishable by a fine not to exceed one thousand dollars or by imprisonment for a period not to exceed six months or by both such fine and imprisonment.

(b) Community service in the city may be imposed in lieu of any penalties and punishments where there has been a conviction or guilty or nolo contendere plea to a misdemeanor.

(Ord. 685 § 1 (part), 1993)

(a) The building official, as designated by the city manager pursuant to section 5.01.030 of this code, or the authorized representative, may institute procedures for administrative abatement of property upon which graffiti exists. The procedures set forth in chapter 1.09 of this code pertaining to administrative abatement shall apply to any such abatement. Costs for any abatement performed by, or on behalf of, the city may be recovered by the city from the property owner in accordance with the procedures established in chapter 15.25 of this code An administrative fee as established from time to time by resolution of the city council shall be added as part of any abatement proceedings.

(b) Removal of graffiti by summary abatement. Pursuant to Government Code Section 38772, the city shall have the option to summarily abate any nuisance resulting from the defacement of property by graffiti at the expense of the minor or other person creating, causing, or committing the nuisance. The expense of abatement may be recovered as provided in section 15.25.171 and section 15.25.172 of this code.

(Ord. 685 § 1 (part), 1993)

(Ord. No. 19-912, § 9, 8-13-2019)

Pursuant to California Government Code Sections 38773.1 and 38773.2, the city may elect that the expense of the abatement, as confirmed by the city council, shall constitute a lien against: 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 shall issue a 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 personally served upon the minor or other person who perpetrated the graffiti nuisance, or the minor's parents or legal guardian. If personal service cannot be made after diligent search, the notice may be posted in a conspicuous place on the property where city abatement occurred and published in a newspaper of general circulation in the city for a period of ten days, or any other means of service authorized by California Government Code Section 38773.2(b).

(b) Such notice shall describe the parcel of property which is to be subject to the lien, state the amount which the person, parent or guardian is required to pay pursuant to this chapter and indicate that unless payment is received by the city within ten days of the notice, the lien shall be recorded against the described real property.

(c) If the total expense of the abatement is not paid to the city in full within ten days after the date of service of the notice, the city clerk or 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.

(d) 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.

(e) 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.

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

(g) 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. 19-912, § 10, 8-13-19)

Pursuant to California Government Code Sections 38773.5 and 38773.6, the city may elect that the expense of the abatement, as confirmed by the city council, shall constitute a special assessment against: 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 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 years by the tax collector for unpaid delinquent assessments. Such notice shall describe the parcel of property which is to be subject to the lien, state the amount which the person, parent or guardian is required to pay pursuant to this chapter and indicate that unless payment is received by the city within ten days of the notice, the lien shall be recorded against the described real property. Failure of the property owner to receive notice shall not affect the tax collector's power of sale.

(b) If the total expense of the abatement is not paid to the city in full within ten days after the date of service of the notice, the city may cause the expense 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 encumbrancer 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. 19-912, § 11, 8-13-2019)

Any notice to private property owners to be served by the city under this chapter shall be addressed to the name and address as it appears on the last tax assessment roll by depositing a copy of the notice in the United States mail, certified, with postage fully affixed, or by personally delivering a copy of the notice to the owner of the property. The service shall be complete at the time of deposit in the mail or when personal service is effectuated. The failure of any person to receive such notice shall not affect the validity of any legal proceedings regarding removal of the graffiti.

(Ord. 685 § 1 (part), 1993)

The remedies provided in this chapter are intended to be cumulative. Nothing in this chapter shall be deemed to prevent the city from commencing a civil, criminal or administrative proceeding to abate a public nuisance or obtain cost recovery as provided herein, from pursuing any other means available to it under provisions of applicable ordinances or state law, or from correcting other hazards or deficiencies on real property in addition to or as alternatives to the proceedings herein set forth. Additionally, the expense of the abatement may 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. 19-912, § 12, 8-13-2019)

If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application and to this end the provisions of this chapter are declared to be severable.

(Ord. 685 § 1 (part), 1993)