Article III — GRAFFITI AND DEFACEMENT

(a)

The city council finds graffiti on public and private property a blighting element which leads to depreciation of the value of property which has been targeted by such vandalism and depreciates the value of the adjacent and surrounding properties to the extent that graffiti creates a negative fiscal impact upon the entire city.

(b)

The city council finds and determines that graffiti is obnoxious and a public nuisance, and must be eliminated by means of prevention, education and abatement to avoid the detrimental impact of such graffiti on the city and its residents, and to prevent the further spread of graffiti.

(c)

The city council finds and determines that graffiti has a direct correlation to other types of crime and that the expedient abatement of graffiti is in the interest of public safety.

(d)

It is the purpose and intent through adoption of this article to protect public and private property from acts of vandalism and defacement. It is further the intent of the city council to provide notice to all those who disregard the property rights of others that the law enforcement agencies of the city will strictly enforce the law and vigorously prosecute those persons engaging in violations of this chapter.

(Ord. No. 1303, § 1, 9-21-99)

(a)

For purposes of this article, the term "graffiti" means any form of unauthorized painting, writing, or inscription regardless of content or nature of the material used in commission of the act.

The act of graffiti shall include the action of any person to intentionally deface, mar or use any liquid or solid substance on any private or public property without the consent of the property owner of such property. A mistake as to the private property owner's identity shall not be deemed a defense to a violation of this section. The term "deface", as used in this section, means the intentional altering of the physical shape or physical appearance of the property.

(b)

Definitions—Generally. Whenever the following terms are used in this section they shall mean the following:

Graffiti removal means the covering or physical removal of affected areas. This may be accomplished by water blasting, repainting, sand blasting, solvent removal, glass replacement or other standards established to eradicate graffiti.

Graffiti implement means aerosol paint container, marking instrument, paint stick, or etching device capable of defacing a surface.

Marking instrument means a marking tip exceeding four millimeters in width and which contains anything other than a solution which can be removed with water after it dries.

Aerosol paint container means any aerosol container adapted, constructed, or intended for the purpose of spraying paint or other substances capable of defacing property.

Paint stick means a device containing a solid form of paint, chalk, wax, epoxy, or similar substance capable of creating a mark of at least one-sixteenth of an inch in width upon a surface.

Etching device means any device capable of defacing a surface.

(Ord. No. 1002, § 2(14.48), 1-22-91; Ord. No. 1077, § 3, 4-20-93; Ord. No. 1303, § 2, 9-21-99)

Cross reference— Definitions and rules of construction generally, § 1-2.

(a)

It shall be unlawful for any person to apply graffiti to public or privately owned structures located on public or privately owned real property within the city, including but not limited to buildings, walls, fences, poles and signs, flood control channels, concrete, paving, trees or rocks, etc.

(b)

It shall be unlawful for any person to intentionally deface, mar or use any liquid or solid substance on any private or public property without the consent of the property owner of such property. A mistake as to the private property owner's identity shall not be deemed a defense to a violation of this section.

(c)

It shall be unlawful for the owner or person in control of any private property to permit graffiti to remain on the owner's property so as to be capable of being viewed by a person utilizing any public right-of-way in the city, such as a road, parkway or alley.

(Ord. No. 1002, § 2(14.49), 1-22-91; Ord. No. 1077, § 3, 4-20-93; Ord. No. 1303, § 3, 9-21-99)

Graffiti is hereby declared a nuisance and subject to abatement according to the provisions and procedures herein contained within this article and as authorized by California Government Code Sections 38773, et seq.

(Ord. No. 1303, § 4, 9-21-99)

(a)

Within the limits as set forth within this section, the city may use public funds for the purpose of graffiti abatement related expenses within the following provisions:

(1)

Sufficient funds are budgeted for such purposes;

(2)

The city manager or the designees approves of the proposed use of the funds;

(3)

The written consent of the property owner of the affected structures, public or private, is obtained in each instance, except as specified in section 18-95 of this article;

(4)

Authorized entry of city employees and contractors on the affected property to accomplish the removal or covering of the material;

(5)

Assign to the city any cause or causes of action which the owner may have against any person or persons who defaced the property with graffiti, and;

(6)

Hold the city, its officers, employees, and contractors harmless from all liability arising out of the entry on the property or the work of removing or covering the material;

(7)

City funds shall be used only to remove or cover the inscribed material itself and shall not authorize or undertake to provide for the repair or painting of a more extensive area unless the city manager, or 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 the cost of repair or repainting of the more extensive area.

(8)

In any instances where the owner or tenant of the affected property caused, materially contributed to, or voluntarily consented to the inscription, the owner may be held financially responsible for the costs of removal, repainting, or repair of the affected property.

(Ord. No. 1303, § 5, 9-21-99)

(a)

If a responsible party fails to remove graffiti within the time herein specified, or if the city shall have requested consent to remove or paint over graffiti and the responsible party shall have refused consent for entry on terms acceptable to the city consistent with the terms of this article, the city may commence abatement and cost recovery proceeding for the removal of the graffiti pursuant to the nuisance abatement authority granted by California Government Code Sections 38773, et seq., which authority includes the recovery of all costs incurred by the city in abating graffiti and recordation of lien as to the affected property.

(b)

Owner or responsible party shall grant in writing, the right of entry over and access to such parcels within 24 hours posted notice, by authorized city employees or agents for the purpose of removing or painting over graffiti. Once the property owner or responsible party has granted permission to remove

or repaint graffiti to the city, it shall be unnecessary for the city to secure property owner permission for any future occurrences of graffiti removal.

(Ord. No. 1303, § 6, 9-21-99)

It shall be unlawful for any individual under the age of 18 years who is on public property, or on private property without the consent of the owner, lessee, or other agency vested with possession of legal title of such property, and who is not accompanied by a responsible adult, to possess a graffiti implement. A responsible adult, as used in this section, is a parent, guardian, or person having legal responsibility for the minor.

(Ord. No. 1303, § 7, 9-21-99)

(a)

It shall be unlawful for any person to sell any marking instrument which has a tip exceeding four millimeters in width, and which contains anything other than a solution which can be removed with water when it dries, to any person under the age of 18 years.

(b)

It shall be the responsibility of the person selling any marking instrument which has a marking tip exceeding four millimeters in width which contains anything other than a solution which can be removed with water when it dries, to determine the age of the inquiring party prior to the transaction.

(c)

It shall be unlawful for any person under the age of 18 years to purchase any marking instrument which has a marking tip exceeding four millimeters in width and which contains anything other than a solution which can be removed with water when it dries.

(Ord. No. 1303, § 8, 9-21-99)

Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol containers, or marker pens with tips exceeding four millimeters in width, containing anything other than a solution which can be removed with water after it dries, shall store or cause such aerosol containers or marker pens to be stored in an area viewable by, but not accessible to the public in the regular course of business without employee assistance, pending legal sale or disposition of such marker pens or paint containers in accordance with this article and Penal Code § 594.1.

(Ord. No. 1303, § 9, 9-21-99)

(a)

Pursuant to Section 53069.5 of the Government Code, the city does hereby offer a reward of $500.00 for information leading to the arrest and conviction of any person for violation of Penal Code Section 594, by the use of graffiti. This award shall be applicable to any city owned property, or property owned by another local agency or state or federal agency that is located within the city that is defaced by graffiti. It shall also apply to any privately owned property that has been maintained by the city for the purposes of graffiti abatement. In the event of multiple contributors of information, the reward amount shall be divided by the city in a manner deemed appropriate by the city.

(1)

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

(b)

Claims for rewards under this section shall be filed with the city. Each claim shall:

(1)

Specifically identify the date, location, type of city owned property, or property owned by another local agency or state or federal agency, or property privately owned but maintained by the city for the purposes of graffiti abatement that was defaced by graffiti.

(2)

Identify by name the person who was convicted of the damage or destruction of the property as defined in this section.

(3)

Identify the court and the date upon which the conviction occurred.

(c)

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. The investigation must determine that the claimant's information was relevant and directly responsible for the arrest and conviction of the suspect.

(d)

The person committing the graffiti and, if that person is not an emancipated minor, then the custodial parent of said minor shall be liable for any rewards paid pursuant to this section.

(Ord. No. 1303, § 10, 9-21-99)

(a)

Criminal penalties. Any person violating the provisions of this chapter shall be guilty of a misdemeanor and upon, conviction thereof, shall be punishable by a fine of not more than $1,000.00, or by imprisonment in the county jail for not more than six months, or both by fine and imprisonment, and by the performance of community service to the maximum extent permitted by California Penal Code Section 594 and or any other provision of law.

(b)

Other penalties available. Whenever deemed appropriate, the city intends to petition a sentencing court to impose the following additional penalties upon conviction:

(1)

Litter or graffiti clean up pursuant to California Vehicle Code Section 42001.7, upon conviction of violation of California Vehicle Code Section 23111, 23112 or 23113(a).

(2)

Suspension or delay of issuance of a driver's license pursuant to California Vehicle Code Section 13202.6 upon a graffiti-vandalism conviction.

(3)

Performance of community service, including graffiti removal service by any minor determined to be a ward of the court as a result of committing a vandalism-related offense in the city, as provided in California Welfare and institutions Code Section 742.16.

(4)

Pursuant to Welfare and Institutions Code Section 742.14 the city hereby elects to have the probation officer of San Bernardino County recoup for it, through juvenile court proceedings, public funds expended in association with defacement by minors of its property and the property of others by graffiti or other inscribed material. For the purposes of this section only, the city council makes the following findings, the specific dollar amounts of which shall be set by council resolution:

(i)

The city's average cost per unit of measure of identifying and apprehending a person subsequently convicted or otherwise found by a court proceeding to have committed an act prohibited by this article including the estimated value of hours spent by the City of Fontana Police Department's personnel and miles driven in patrol vehicles;

(ii)

The city's average cost per unit of measure of removing graffiti or other inscribed material, or of repairing or replacing property defaced with graffiti or other inscribed material that cannot be cost effectively removed including cost of inspection by city code enforcement officer, cost per photo documenting graffiti damage, and per square inch cost of labor and materials used to remove graffiti damage pursuant to Government Code Section 53069.3; and

(iii)

Any additional documented costs per graffiti incident.

(5)

When the person committing the act of graffiti is a minor, the court may order the minor and his or her parents or guardians to keep the damaged property or another specified property in the community free of graffiti for up to one year.

(c)

It is the intent of this section, pursuant to Penal Code Section 640.6(a), that all acts of graffiti-vandalism occurring within the city shall be prosecuted as misdemeanors pursuant to Penal Code Section 594, et seq., except for acts of graffiti-vandalism punishable as felonies under state law, which the city intends to be prosecuted as felonies.

(d)

Pursuant to California Civil Code each parent or legal guardian shall be personally liable for any and all costs to any person or business incurred in connection with removal of graffiti caused by that parent or guardian's minor child, and for all law enforcement costs, city staff costs, attorneys fees and court costs incurred in connection with the civil prosecution of any claim for damages or reimbursement up to $25,000.00.

(e)

Pursuant to Government Code Section 38773.6, it is the intent of the city to collect abatement and administrative costs incurred in the summary abatement of any nuisance resulting from defacement by a minor of a property of another by graffiti or any other inscribed material a special assessment against the parcel of land owned by the minor or by the parent of the minor.

Methods of notices and orders, time and place of hearing, and conduct of hearing shall be conducted according to section 18-8 through section 18-10 of the Fontana Municipal Code. The assessment for cost of abatement may 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 and the same procedure for sale in case of delinquency as provided for ordinary taxes. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment.

If any real property to which abatement and related administrative costs 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 abatement and related administrative costs shall not result on a lien against the property, but shall instead be transferred to the unsecured roll for collection.

(Ord. No. 1303, § 11, 9-21-99; Ord. No. 1722, § 1, 2-24-15)

In imposing conditions upon conditional use permits, variances, building permits or other similar land use entitlements or development or design applications, the city may impose the following conditions or other similar or related conditions:

(a)

Use of anti-graffiti material. An applicant may be required to apply an anti-graffiti material and provide landscape design of a type and nature which is acceptable to the city manager or designee, to such of the publicly viewable surfaces to be constructed on the site deemed by the city manager, or designee, to be likely to attract graffiti, hereinafter referred to as graffiti attracting surfaces.

(b)

Right of access to remove graffiti. An applicant shall grant right of entry and access to such parcels, by authorized city employees or agents for the purpose of removing or painting over graffiti, on graffiti attracting surfaces previously designated by the city manager or designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land.

(c)

Conditions, covenants and restrictions. Persons applying for subdivision maps shall as part of any conditions, covenants and restrictions, which covenant shall run with the land, in a form satisfactory to the city, condition that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees, rocks or structures thereon to the city's satisfaction.

(Ord. No. 1303, § 12, 9-21-99)

A violation of any of the provisions of this chapter may be abated by the city through a civil process by means of restraining order, preliminary or permanent injunction, or any other manner provided by law or this Code for the abatement of a graffiti nuisance.

(Ord. No. 1303, § 13, 9-21-99)