Hesperia Municipal Code Ch. 9.08 Graffiti

A. The city council of the city specifically finds that graffiti on public or private property is a blighting factor which not only depreciates the value of property which has been the target of such vandalism but also depreciates the value of the adjacent and surrounding properties so as to create a negative impact upon the entire city.

B. California Government Code Section 53069.3 authorizes the city, under certain circumstances, to provide for the removal of graffiti and other inscribed materials from private as well as public property. The council finds and determines that graffiti is obnoxious and a public nuisance and, unless the city causes it to be removed from public and private property, it tends to remain. Other properties then become the target of graffiti with the result that entire neighborhoods are affected and become less desirable places in which to be. Graffiti also has been found to be a means of identification utilized by gangs and its presence may encourage further gang-related activities.

C. It is the purpose and intent of the city council, through the adoption of this chapter, to provide additional enforcement tools to protect public and private property from acts of vandalism and defacement, including the application of graffiti on privately and publicly owned walls and structures. Such acts are inimical to, and destructive of, the rights and values of private property owners as well as the total community. It is the further intent of the city council, through the adoption of this chapter, to provide notice to all of 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 the defacement of public and private properties.

(Ord. 250 (part), 1997; Ord. 173 § 2 (1), 1993)

It is unlawful for any person to apply graffiti to any public or privately owned tree, rock, or structure, including, but not limited to, buildings, walls, fences, poles, signs, flood control channels, concrete, and paving ("structures" hereinafter in this chapter) located within the city. It is also unlawful for any person to apply or affix any adhesive backed label, sticker, "bumper sticker" or similar item, to any tree, rock, or structure not owned or lawfully possessed by such person.

(Ord. 2008-13 § 1, 2008: Ord. 250 (part), 1997; Ord. 173 § 2 (3), 1993)

It is unlawful for any person under the age of eighteen (18) years to have in his or her possession any graffiti implement while upon public property or upon private property without the consent of the owner of such private property, whose consent to such possession and presence is given in writing in advance. This provision shall not apply to the possession of felt tip markers by minors attending or traveling to or from a school at which the minor is enrolled, if the minor is participating in a class at the school which formally requires the possession of such felt tip markers. The burden of proof in any prosecution for violation of this section shall be upon the minor student to establish the need to possess a felt tip marker.

(Ord. 250 (part), 1997; Ord. 173 § 2 (4), 1993)

It is unlawful for any person to have in his or her possession any graffiti implement while in any public park, playground, swimming pool, recreational facility, or while in or within ten feet of an underpass, bridge abutment, storm drain or other similar type of infrastructure not normally used by the public, except as may be authorized by the city.

(Ord. 250 (part), 1997; Ord. 173 § 2 (5), 1993)

A. Furnishing to Minors Prohibited. It is 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 any minor without the consent of the parent or lawful guardian which consent shall be given in advance in writing.

B. Display Requirements. No person or business engaged in a commercial enterprise shall display for sale, trade or exchange, any graffiti implement except in an area from which the public shall be securely precluded without employee assistance. Two such acceptable methods for displaying graffiti implements 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 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. Nothing herein shall relieve such person or business entity from, at all times, complying with the requirements of California Penal Code Section 594.1(c) by posting signs as described therein.

C. Storage Requirements. No person or business engaged in the business of selling, providing or trading graffiti implements shall store any graffiti implement except in either: (1) a completely enclosed room which shall, at all times except during access or actual occupancy by the owner or an authorized adult representative of the owner, remain securely locked; or (2) in 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 the owner or an authorized adult representative of the owner, remain securely locked. For purposes of this section, an owner or authorized representative of the owner, shall be deemed to actually occupy a room even during brief periods of absence if the room is contained within a larger structure which is occupied by the owner.

D. Civil Responsibility for Damages for Wrongful Display or Storage. Any person who displays or stores or permits the display or storage, of any graffiti implement in violation of the provisions of this section shall be personally liable for any and all costs, including attorneys fees and court costs, incurred by any party in connection with the removal of graffiti, the repair of any property containing graffiti, or such party's prosecution of a civil claim for reimbursement or damages resulting from such graffiti removal or property repair, arising from the use by any person of such wrongfully displayed or stored graffiti implement in violation of the provisions of any of the California Penal Code Sections set forth in Section 9.08.080, or in violation of Section 9.08.030.

(Ord. 250 (part), 1997; Ord. 173 § 2 (6), 1993)

A. Right of City to Require Removal. It is unlawful for any person who is the owner, or who has primary responsibility for control, of property or who has primary responsibility for the repair or maintenance of property ("responsible party" hereinafter in this section), to permit the property to be defaced with graffiti for a period of seven days after service by city, by first class mail of notice of same, unless: (1) the person shall demonstrate by a preponderance of evidence that he or she does not have the financial ability to remove the defacing graffiti; or (2) it can be demonstrated that the responsible party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it is unlawful to permit such property to remain defaced with graffiti for a period of fifteen (15) days after service by first class mail of notice of same.

B. Declaration of Nuisance.

1. Graffiti as a Nuisance. The city council hereby declares and finds graffiti to be a nuisance subject to abatement according to the provisions and procedures herein contained and as authorized by California Government Code Sections 38773, et seq.

2. Graffiti Attracting Surface as a Nuisance. The existence of any surface of a structure on any privately owned parcel of land which has been defaced with graffiti after removal more than five times in twelve (12) months is deemed to be a nuisance, and may be abated by the city's requiring modifications thereto, or to the immediate area surrounding same. Such modifications may include, but are not limited to: retrofitting of such surfaces at the expense of the property owner(s) of the lot, not to exceed a total cost of five hundred dollars ($500.00), or at the cost of the city at the city's option, with such features or qualities as may be established by the city as necessary to reduce the of attractiveness of the surface for graffiti, or as necessary to permit more convenient, expedient or efficient removal of graffiti therefrom.

C. Right of City to Remove.

1. Use of Public Funds. 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 designee, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid 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.

2. Right of Entry on Private Property.

a. Securing Owner Consent. Prior to entering upon private property or property owned by a public entity other than the city, for the purposes of removal of graffiti, the city shall attempt to secure the consent of the responsible party, and a release of the city from liability for private or public property damage.

b. Failure to Obtain Owner Consent. If a responsible party fails to remove the offending graffiti within the time 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 may commence abatement and cost recovery proceedings 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 a lien as to affected property.

D. Ease of Removal Provisions.

1. Common Utility Colors and Paint-type. Any gas, telephone, water, sewer, cable, telephone and other utility operating in the city, other than an electric utility, shall paint their above-surface metal fixtures which are installed after the effective date of this chapter, with a uniform paint type and color as directed by the city manager.

2. Conditions on Encroachment Permits. Encroachment permits issued by the city may, among other things, be conditioned on: (1) the permittee applying an anti-graffiti material to the encroaching object or structure of a type and nature that is acceptable to the city manager, or his or her designee; (2) the immediate removal by the permittee of any graffiti; (3) the right of the city to remove graffiti or to paint the encroaching object or structure; (4) the permittee providing city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object or structure containing graffiti.

3. Conditions on Discretionary Approvals. 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 graffiti removal requirements or any or all of the following conditions, or other similar or related conditions:

a. Use of Anti-graffiti Material. Applicant shall apply an anti-graffiti material of a type and nature that is acceptable to the city manager, or his or her 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 ("graffiti attracting surfaces" hereinafter in this section).

b. Right of Access to Remove Graffiti. Applicant shall grant in writing, the right of entry over and access to such parcels, upon forty-eight (48) hours posted notice, 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. Supply City with Graffiti-removal Material. Applicant, and any and all successors in interest, shall, for a specified period of years after approval, 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.

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

(Ord. 250 (part), 1997; Ord. 173 § 2 (7), 1993)

A. Reward Authority.

1. Pursuant to Section 53069.5 of the California Government Code, the city does offer a reward in an amount as may be set by resolution of the city council, for information leading to the arrest and conviction of any person for violation, within the city, of California Penal Code Sections 594 or 594.3 by the use of graffiti, Penal Code Sections 640, 640.5, 640.6, or Sections 9.08.030, 9.08.040 or 9.08.050 of this chapter. In the event of multiple contributions 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 violator to a community service program, or a plea bargain to a lesser offense, shall constitute a conviction.

2. Claims for rewards under this section shall be filed with the city. 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;

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

3. No claim for a reward shall be allowed by the city council unless the city investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied.

4. The person committing the graffiti-vandalism, and if an unemancipated minor, then the parent or lawful guardian of the minor, shall be civilly liable for any reward paid pursuant to this section pursuant to the provisions of California Government Code Section 53069.5.

(Ord. 250 (part), 1997; Ord. 173 § 2 (8), 1993)

The city shall reimburse to any person reporting by means of a cellular phone an act of graffiti vandalism presently occurring within the city, the amount of the actual phone charges, exclusive of taxes, incurred by said person.

(Ord. 250 (part), 1997; Ord. 173 § 2 (9), 1993)

A. Criminal Penalties. Any violation of this chapter shall be a misdemeanor punishable by either six months in jail, a one thousand dollar ($1000.00) fine, or by such fine and imprisonment, and by the performance of community service in the form of graffiti clean-up to the maximum extent permitted by California Penal Code Section 594 and/or any other provision of law.

B. Additional Penalties Available. Whenever deemed appropriate, it is the city's intent to petition a sentencing court to impose the following additional penalties upon conviction:

1. Litter or graffiti cleanup pursuant to California Vehicle Code Section 42001.7, upon conviction of violation of California Vehicle Code Sections 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 Sections 728 and/or 729.6;

4. Performance of community service, including graffiti removal service of up to one hundred (100) hours by any minor determined to be a ward of the court as a result of committing a drug-related offense in the city, as provided in California Welfare and Institutions Code Section 729.8.

C. It is the city's further intent that pursuant to California Penal Code Section 640.6(a), all acts of graffiti-vandalism occurring within the city shall be prosecuted as misdemeanors pursuant to California Penal Code Section 594, et seq., or this chapter.

D. Pursuant to California Civil Code Section 1714.1, any parent or legal guardian whose minor child possesses a graffiti implement, shall be personally liable for any and all costs to any person or business incurred in connection with the removal of graffiti caused by the child, or by the graffiti implement, and for all attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damages or reimbursement, up to ten thousand dollars ($10,000.00).

(Ord. 250 (part), 1997; Ord. 173 § 2 (10), 1993)

A. Defendant Determined to be the Responsible Party. When the disposition of a criminal case or a proceeding pursuant to Welfare and Institutions Code Section 602 determines that the defendant in that case is responsible for creating, causing or committing the graffiti which was abated by the city, that same defendant shall be liable for all costs incurred by the city. These costs shall include, but are 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 in the identification and apprehension of the defendant responsible for the graffiti or other inscribed material on publicly or privately owned permanent real or personal property within the city, as prescribed within Government Code Sections 38772 through 38773.6 and 53069.3.

1. The determination of responsibility shall be presumed by any confession, admission, guilty plea, or plea of nolo contendere to any violation of Penal Code Sections 594, 594.3, 640.5, 640.6, or 640.7.

2. In the case of a minor defendant, responsibility shall be determined upon a conviction by final judgment or by the minor being made a ward of the juvenile court pursuant to Welfare and Institutions Code Section 602 by reason of the commission of any act prohibited under Penal Code Sections 594, 594.3, 640.5, 640.6, or 640.7.

B. City Funds to be Recovered. City shall recover all city funds used to remove graffiti, or to repair or replace graffiti-damaged real or personal property within the city. These costs shall be recovered from the defendant who has been determined to be the responsible party as outlined above. These costs shall be recovered as follows:

1. Adult Defendants. A civil action may be pursued to obtain a money judgment against the defendant for any amount not ordered or collected by the criminal court in which the matter was heard. Such money judgments may be filed or recorded to create a lien against personal or real property as permitted by Code of Civil Procedure Sections 697.010, et seq.

2. Juvenile Defendants. A civil action may be pursued to obtain a money judgment against the juvenile defendant and/or his or her parent(s) or guardian(s) having custody and control of the minor for any amount not ordered or collected by the juvenile court in which the matter was heard. Such money judgments will be filed or recorded to create a lien against personal or real property as permitted by Government Code Sections 38772, et seq.

a. Lien and Personal Obligation. The expense of abating the graffiti nuisance may result in a lien against the property of a minor and a personal obligation against the minor. The parent(s) or guardian(s) having custody and control of the minor shall be jointly and severally liable with the minor pursuant to Government Code Sections 38772, 38773.2 and 38773.6.

i. Notice of Intent to Lien. Notice of intent to record a lien shall be given to the owner of record of any parcel prior to the recordation of any lien. The owner may be the minor, or the parent(s) or legal guardian having custody and control of the minor. Said notice shall be served by personal service in the same manner as a civil action in accordance with the Code of Civil Procedure Section 415.10. If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy of the notice in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Government Code Section 6062.

ii. Recordation. A nuisance abatement lien shall be recorded in the county recorder's office in the county in which the parcel of land is located and from the date of recording shall have the force, effect, and priority of a judgment lien.

iii. Specific Data. A graffiti nuisance abatement lien authorized by this section shall specify the amount of the lien; the name of 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 owner of the parcel.

iv. If the lien is discharged, released, or satisfied through payment or foreclosure, notice of the discharge containing the information specified in subsection (B)(2)(a)(iii) of this section shall be recorded by the governmental agency. A graffiti nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.

v. A graffiti nuisance abatement lien may be satisfied through foreclosure in an action brought by the city.

vi. The city may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

b. Special Assessment. As an alternate to the nuisance lien, the city may recover its costs, as delineated above, a special assessment against the parcel of land owned by the minor or by the parent or guardian having custody and control of the minor. The assessment 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 and sale in case of delinquency as provided for ordinary municipal taxes.

c. Second or Subsequent Criminal Judgment. Upon the entry of a second or subsequent criminal judgment within a two-year period, the city may find that an owner of property is responsible for a condition that may be abated in accordance with this code section, may request the court order treble damages pursuant to Government Code Section 38773.7.

C. Liability in Addition to Penalties. The liability for the cost of graffiti abatement described in this section shall be in addition to and shall not replace or supersede any penalties or civil liability of parents described in Section 9.08.100.

(Ord. 2008-13 § 2, 2008)