Chapter 131 — OFFENSES AGAINST PROPERTY

The purpose of this subchapter is to provide a program to prevent and control the further spread of graffiti within the city, to establish a process for the removal of graffiti from real and personal property, and to assess and recover costs related to such removal.

(Prior Code, § 3998.01) (Ord. 09-02, passed 4-6-2009)

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates, or requires, a different meaning.

A PERSON IN CONTROL OF REAL PROPERTY.

(1) A renter or lessee of real property where a term of the rental agreement or lease provides that the renter or lessee is responsible for the upkeep and maintenance of the real property including painting of the property.

(2) A manager who is designated by the person in control of the real property.

GRAFFITI. Includes any unauthorized inscription, writing, lettering, word, figure, marking, drawing, or design that is marked, written, etched, scratched, drawn, or painted, or otherwise placed on any part of building, structure, facility, or surface, regardless of the nature of the material of that part.

GRAFFITI ABATEMENT COSTS AND EXPENSES. Means and includes, but are not limited to, the following costs and expenses incurred by the city:

(1) The costs and expenses of having graffiti removed from defaced property;

(2) The costs and expenses of having defaced property repaired or replaced when the city determines that the removal of the graffiti would not be cost effective;

(3) The costs of administering and monitoring the participation of a defendant and his or her parents or guardians in a graffiti abatement program;

(4) The related administrative, overhead, and incidental costs incurred in performing or causing the performance of the enforcement, abatement, or collection procedures described in this subchapter; and

(5) Related court costs and attorneys’ fees in accordance with Cal. Government Code § 38773.5.

GRAFFITI ERADICATION COSTS AND EXPENSES. Includes, but are not limited, to the following costs and expenses incurred by the city:

(1) All costs enumerated above in the definition of GRAFFITI ABATEMENT COSTS AND EXPENSES ; and

(2) The law enforcement costs and expenses incurred in identifying and apprehending a responsible party. GRAFFITI IMPLEMENTS.

(1) Includes, but are not limited to, the following items possessed with the intent to deface any property:

(a) AEROSOL PAINT CONTAINER means any aerosol container, regardless of the materials from which it is made, which is adapted or made for the purpose of spraying paint or other substance capable of defacing property. AEROSOL PAINT CONTAINER does not include a container of less than six ounces capacity provided to a minor for the minor’s use or possession under the supervision of the minor’s parent, guardian, instructor, or employer;

(b) FELT TIP MARKER means any broad tip marker pen with a tip exceeding three-eighths of one inch in width, or any similar implement containing an ink that is not water soluble; and

(c) PAINT STICK or GRAFFITI 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 upon application, leaving a mark at least one-sixteenth of one inch in width, which cannot be removed with water after it dries.

(2) GRAFFITI IMPLEMENTS does not include the above items if they are furnished for use in school-related activities that are part of an approved instructional program, when such items are used under controlled and supervised situations within the classroom or on the site of a supervised project.

POLICE CHIEF. The Chief of Police of the city, or his or her designee.

REAL or PERSONAL PROPERTY. Includes, but is not limited to: buildings or other structures, such as walls; fences; signs; retaining walls; driveways; walkways; sidewalks; curbs; street lampposts; hydrants; trees; electric, light, power, telephone, or telegraph poles; drinking fountains; display stands; utility boxes; and garbage receptacles. RESPONSIBLE PARTY.

(1) Any person, including a minor, who has been determined to have placed graffiti on real or personal property of another person.

(2) A minor who has: confessed to, admitted to, or pled guilty or no contest to, a violation of Cal. Penal Code §§ 594, 594.3, 640.5, 640.6, or 640.7; or who has been convicted by final judgment of a violation of Cal. Penal Code §§ 594, 594.3, 640.5, 640.6, or 640.7; or who has been declared a ward of the juvenile court pursuant to Cal. Welfare and Institutions Code § 602 by reason of the commission of an act prohibited by Cal. Penal Code §§ 594, 594.3, 640.5, 640.6, or 640.7.

(3) The parents or guardians having custody and control of a minor who is a responsible party also are responsible parties for the purpose of this subchapter.

UNAUTHORIZED. Either without the prior consent of the property owner or in violation of any law or regulation. (Prior Code, § 3998.02) (Ord. 09-02, passed 4-6-2009)

The City Council declares that graffiti is a public and private nuisance, and may be abated pursuant to this subchapter, or as otherwise provided by law.

(Prior Code, § 3998.03) (Ord. 09-02, passed 4-6-2009)

(A) It is unlawful for any person, regardless of age, to place graffiti as defined in § 131.02 upon any real or personal property when the graffiti is visible from any public right-of-way or from any other public or private property.

(B) It is unlawful for any person who owns or is in control of any real or personal property within the city to knowingly allow graffiti to remain upon real or personal property for a period of time longer than 72 hours after having been given notice as provided for in § 131.07(C) when the graffiti is visible from any public right-of-way or from any other public or private property.

(C) It shall be unlawful for any person, regardless of age, to aid, abet or encourage another to paint, etch, or in any other manner apply graffiti upon public or private, real, or personal property of any kind within the city. (Prior Code, § 3998.04) (Ord. 09-02, passed 4-6-2009) Penalty, see § 10.99

The Police Chief is authorized to establish a comprehensive graffiti eradication program within the city which may, but is not required to, include the following: proactive enforcement to identify, apprehend, and prosecute persons who

have placed graffiti on the real or personal property of another; establishment of procedures to pursue restitution of graffiti eradication costs from responsible parties; establishment of a preventive education program within local schools to prevent graffiti; establishment of an offender education program with the intent of diverting those apprehended for graffiti related offenses; establishment of a “graffiti hotline” to be used by the community to report real or personal property which has been defaced with graffiti; coordination of an adopt an area or neighborhood for reporting and clean up of graffiti; and the coordination and maintenance of a graffiti wipe-out program which utilizes available resources and enlists citizen volunteers and those who are responsible for community service as an imposition of sentence or condition of probation with the goal of cleaning graffiti from real or personal property within the city within 72 hours of its appearance.

(Prior Code, § 3998.05) (Ord. 09-02, passed 4-6-2009)

To assist the Police Chief in identifying the responsible party in incidents of graffiti, the Police Chief is authorized to request and receive any report or materials containing the names and addresses of responsible parties to the fullest extent allowed by law.

(A) This authority includes, without limitation, the authority to receive a report from the county probation officer containing the names and addresses of parent or guardians having custody and control of minors who are responsible parties pursuant to Cal. Government Code § 38772(c).

(B) The Police Chief may apply to the juvenile court for the release of the names and addresses of responsible parties who are minors.

(Prior Code, § 3998.06) (Ord. 09-02, passed 4-6-2009)

(A) Recovery of costs and expenses.

(1) Any responsible party as defined in this subchapter shall be liable to the city for all graffiti eradication costs and expenses.

(2) All responsible parties for graffiti on a particular property shall be jointly and severally liable for the graffiti eradication costs and expenses.

(Prior Code, § 3998.07)

(B) Invoices. The Police Chief, or his or her designee, shall cause to be sent an invoice for graffiti eradication costs and expenses to a responsible party. In addition to information on the standard invoice for city service fees, the invoice for graffiti abatement costs and expenses shall contain:

(1) The address or location of the defaced real or personal property and the location and a description of the defaced personal property sufficient to identify the defaced property;

• (2) A summary of the graffiti abatement actions performed;

• (3) A listing of the graffiti abatement costs and expenses incurred;

• (4) The identity of the responsible party and the basis of that determination;

• (5) A description of the payment process, including the time within which and the place to which the graffiti eradication costs and expenses shall be paid;

• (6) A statement advising that the graffiti abatement costs and expenses shall be a personal obligation of the party;

• (7) A statement advising that the city may pursue a special collection process for the graffiti abatement costs and expenses against real property owned by the responsible party; and

• (8) A description of the process by which a responsible party may protest the determination that he or she is a responsible party or the amount of the graffiti abatement costs and expenses.

(Prior Code, § 3998.08)

(C) Abatement and cost recovery proceedings. Abatement of graffiti and assessment of graffiti abatement and/or eradication costs shall be in accordance with the following procedure:

• (1) Following a report of graffiti from any source, the Police Chief shall issue a notice of intent to abate the graffiti as a public nuisance, and shall serve such notice by any of the following methods:

• (a) By personal service on the owner, occupant, or person in charge or control of the property;

• (b) By posting at a conspicuous place on the property or abutting public right-of-way; or

• (c) By sending a copy of such notice by registered or certified mail addressed to the owner at the address shown on the last available assessment roll, or as otherwise known.

• (2) The notice of intent shall be in substantially in the following form:

NOTICE OF INTENT TO ABATE NUISANCE-GRAFFITI

NOTICE OF INTENT TO ABATE NUISANCE-GRAFFITI

---

_______________________________ (Name and address of person notified)

---

(Date)

NOTICE IS HEREBY GIVEN that you are required by Grover Beach Municipal Code Chapter 131 to, at your sole expense, remove or paint over the graffiti in existence on the property located at (address), which is visible to public view, by (date). If you fail to do so, the City or its agents will enter your property and remove or paint over the graffiti. The cost of such removal and/or painting will be assessed against you and your property, and such costs will constitute a lien upon such property until paid.

You may request a hearing to contest this notice. To request a hearing, you must submit a written request to the Police Chief by (date). If a request is not received by this date by the Police Chief, the Police Chief shall have the authority to proceed with the abatement of the graffiti inscribed on your property without further notice or hearing, and at your expense.

Your presence is not required at the hearing. In lieu of attendance, you may submit a sworn written statement executed under penalty of perjury, as to why you are not responsible for the removal of the graffiti, and/or assessment of costs of removal and/or painting. If you do not appear in person at the hearing, your sworn written statement as described will be considered as your sole testimony.

(3) Upon receipt of a request for hearing, the Police Chief shall set a date and time for the hearing and notify the person requesting the hearing of the date, time, and location of the hearing. All hearings under this subchapter shall be held before the Police Chief who shall hear all facts and testimony he or she deems pertinent. Said facts and testimony may include testimony on the location of the graffiti and the circumstances concerning its placement on the real or personal property. The Police Chief shall not be limited by the technical rules of evidence. After the hearing, the Police Chief shall serve notice of his or her written decision to the person requesting the hearing, or other affected parties, within ten working days.

(4) Any owner of the real or personal property on which graffiti is to be abated that is not satisfied with the decision of the Police Chief to abate said graffiti may appeal to the City Manager or his or her designee. The written appeal must be filed with the City Manager within ten working days of service of the Police Chief’s decision. The City Manager, or his or her designee, may uphold the order of the Police Chief to abate the graffiti granted under this chapter if the City Manager, or his or her designee, determines that the graffiti is detrimental to the public safety or welfare.

(Prior Code, § 3998.12)

(Ord. 09-02, passed 4-6-2009)

(A) Graffiti removal. Graffiti which is visible from any public right-of-way or public or private property shall be removed in accordance with the following provisions.

(1) Removal by property owner. The property owner or other person in control of such property shall be encouraged to perform the removal with his or her own resources.

(2) Removal by the city with consent of the property owner. The city or its agents may remove graffiti upon satisfaction of the following conditions:

(a) The consent of the owner of the property is obtained;

(b) The property owner has requested the city to remove the graffiti and has shown that they are unable to, due to financial or physical reasons;

(c) The property owner executes a release and right of entry form permitting such graffiti removal;

(d) The city shall not paint or repair a more extensive area than is necessary to remove the graffiti, unless the Police Chief determines that a more extensive area needs repainting or repairing in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the property owner agrees to pay for the cost of repainting or repairing the more extensive areas; and

(e) The owner provides paint of a specific color or match if they so desire or are able to.

(3) Removal by city without consent of the property owner. If the above solution fails to result in the successful removal of graffiti, the Police Chief may order abatement of graffiti from real or personal property when the owner does not remove the graffiti with his or her own resources, or satisfy the conditions of divisions (A)(1) or (A)(2) above.

(Prior Code, § 3998.09)

(B) Standards for graffiti removal. Graffiti shall be removed or completely covered in a manner that renders it inconspicuous. When graffiti is painted out, the color used to paint it out shall match the original color of the surface, or the surface shall be completely repainted with a new color that is aesthetically compatible with existing colors and architecture. The removal shall not leave shadows and shall not follow the pattern of the graffiti such that the letters or similar shapes remain apparent on the surface after graffiti markings have been removed. If the area is heavily covered with graffiti, the entire surface shall be repainted.

(Prior Code, § 3998.11)

(Ord. 09-02, passed 4-6-2009)

All persons who own real or personal property upon which graffiti has been placed shall cause the removal of such graffiti, in the manner set forth in § 131.08(B), within 72 hours after it is placed on the property. If the owner fails to do so, the Police Chief may abate and remove graffiti on public or private property in accordance with the procedure set forth in §§ 131.07(C) and 131.08(B).

(Prior Code, § 3998.10) (Ord. 09-02, passed 4-6-2009)

(A) Following abatement, the Police Chief shall send an invoice to the owner of the real or personal property upon which graffiti has been abated. The notice shall specify all graffiti abatement costs.

(B) The total cost of graffiti abatement, including all administrative costs, shall be paid by the owner or other person in control of the real property or the owner of personal property upon which graffiti has been abated within 30 calendar days after service of the invoice.

(C) Pursuant to Cal. Government Code § 38773.5, the total cost of abatement, including all administrative costs, shall constitute a special assessment against the property subject to the graffiti abatement if not paid in full within 30 days after service of the invoice. After the assessment is made, it shall constitute a lien on the property subject to the graffiti abatement. Such 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 and the same procedures and sale in case of delinquency as provided for ordinary municipal taxes.

(Prior Code, § 3998.13) (Ord. 09-02, passed 4-6-2009)

Instead of making the cost of abating a nuisance a special assessment against the property subject to the graffiti abatement, the city may make the cost the personal obligation of the property owner or other person creating, causing, committing, or maintaining the nuisance. In such a case, all of the procedures of this subchapter apply, except those specially related to assessment of the property. The property owner or person in control will remain responsible for all abatement costs until reimbursement is collected by the city from the person creating, causing, or committing the nuisance.

(Prior Code, § 3998.14) (Ord. 09-02, passed 4-6-2009)

Nothing in this subchapter shall be deemed to prevent the City Council from authorizing the City Attorney to commence any other available civil or criminal proceedings to abate a public nuisance in addition to or alternative to proceedings set forth in this subchapter.

(Prior Code, § 3998.15) (Ord. 09-02, passed 4-6-2009)

(A) By minors at or near school facilities. It shall be unlawful for any person under the age of 18 years to possess any graffiti implement as defined in § 131.02 while on any school property, grounds, facilities, buildings, structures, or in areas immediately adjacent to those specific locations, upon public property, or upon private property without the prior written consent of the owner or occupant of such private property.

(B) In designated public places. It shall be unlawful for any person to possess any graffiti implement as defined in § 131.02 while in any public place.

(Prior Code, § 3998.16) (Ord. 09-02, passed 4-6-2009) Penalty, see § 10.99

(A) Pursuant to Cal. Government Code § 53069.5, the city may offer a reward of up to $500 for any person or persons who furnish information, in whatever method that provides for adequate identification of the violator(s) which may include photo or video evidence, to the city’s Police Department leading to the arrest and conviction, adjudication as a juvenile offender, or confession of any person for violation of § 131.04 or Cal. Penal Code § 594. 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, may constitute a conviction.

(B) Moneys collected from penalties shall be deposited into the city’s fund, and those moneys may be utilized to pay for the monetary reward and graffiti control program.

(C) Claims for rewards under this section shall be filed with the City Clerk as are other claims against the city. Each claim shall:

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

• (2) Identify the person who was convicted of or who confessed to violating § 131.04 or Cal. Penal Code § 594;

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

(4) No claim for a reward shall be allowed 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 violation, and, if that person is not an emancipated minor, then the custodial parent or guardian of the minor shall be liable for any rewards paid pursuant to this section. (Prior Code, § 3998.17) (Ord. 09-02, passed 4-6-2009)