Hollister Municipal Code Ch. 8.16 Graffiti

The purpose of this chapter is to provide for the removal of graffiti from real or personal property, whether publicly or privately owned, and to prevent and control the further spread of graffiti as well as other acts of vandalism and defacement of property in the city. The city council finds and determines that the existence of graffiti results in blight, deterioration of property values and deprivation of the right to enjoyment of life for persons using adjacent and surrounding properties. The council further finds and determines that graffiti constitutes a public nuisance and a threat to public safety, and unless graffiti is quickly removed from property, other properties soon become the targets of graffiti. This chapter is consistent with state law which authorizes the enactment of ordinances to provide for the use of city funds to summarily abate graffiti.

(Prior code § 3B-1)

As used in this chapter:

Graffiti means any unauthorized inscription, word, figure, mark or design that is written, marked, etched, scratched, drawn, sprayed or painted on any real or personal property.

Property means real or personal property, whether publicly or privately owned, within the city of Hollister.

Responsible party means any person who is the owner of property, or who has primary responsibility for control over property, or who has primary responsibility for the repair and maintenance of property.

(Prior code § 3B-2)

The city council declares that graffiti is a public nuisance and is subject to punishment and abatement as prescribed in this code.

(Prior code § 3B-3)

A. It is unlawful for any person to apply graffiti upon any property within the city.

B. It is unlawful for any person owning or otherwise being in control of any property within the city to maintain, permit, or allow any graffiti to remain upon such property when the graffiti is visible from the street or other public or private property.

C. It is unlawful for any person to assist, aid, abet or encourage another to violate the provisions of this chapter by words or overt act.

(Prior code § 3B-4)

A. It is unlawful for any responsible party to permit property which has been defaced with graffiti to remain so defaced for a period of three calendar days after having been given notice of the violation of this section.

B. 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 responsible party. If the responsible party fails to remove the graffiti within the time herein specified or if the responsible party has refused to give consent to the city for entry on terms acceptable to the city consistent with the provisions of this section, the city may commence abatement and cost recovery proceedings for removal of the graffiti according to the procedures herein.

(Prior code § 3B-5)

The city manager is authorized to provide for the removal of graffiti solely at the city's expense, without reimbursement from the property owner upon whose property the graffiti has been applied, upon the following conditions:

A. The city shall not paint or repair a more extensive area than is necessary to remove the graffiti;

B. Where the structure or permanent surface is owned by a public entity other than the city, the removal of the graffiti may be performed only after securing the consent of the public entity having jurisdiction over the structure or permanent surface, and only after such entity executes an appropriate release and right of entry form permitting such graffiti removal; and

C. Where the structure or permanent surface is privately owned, the removal of the graffiti by city employees or by a private contractor under the direction of the city manager may be performed only after securing the consent of the responsible party, and only after the responsible party executes an appropriate release and right of entry form permitting such graffiti removal.

(Prior code § 3B-6)

A. In those instances where the city is unable to obtain the consent of the responsible party, the city manager shall have the authority to cause the abatement and removal of graffiti in accordance with the following procedure:

1. If a hearing is requested by the owner or the owner's agent, the city manager, or his or her designee (hearing officer), shall give the responsible party not less than 48 hours' notice of a hearing to be held by the hearing officer for the purpose of showing cause why the public nuisance should not be abated by the city. Following notice, the hearing shall be held by the hearing officer at the time, date and place designated and at the hearing the owner or the owner's agent may be heard and provided with the opportunity to show cause why the graffiti should not be abated. Following the hearing, the hearing officer shall determine whether abatement of the graffiti shall be commenced.

2. If the hearing officer determines that abatement of the graffiti shall be commenced, the city may enter upon the property and cause such nuisance to be removed in the manner determined most appropriate by the city.

3. If a hearing has not been requested by the property owner or the property owner's agent, the city may enter upon the property and cause such nuisance to be removed in the manner determined most appropriate by the city.

4. Upon removal of the public nuisance, the city may provide an accounting of the expense of abatement along with a demand for payment to the property owner.

5. If payment is not made within 30 days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of $100.00 plus interest on the unpaid amount plus penalty, which interest shall accrue at the rate of one and one-half percent per month until paid.

6. In the event the expense of abatement has not been paid within 30 days from the date of issuing an accounting and demand for payment, the amount unpaid including any penalty and interest therein, shall constitute a lien pursuant to Government Code Sections 38773 and 38773.1 against the property of the owner. Prior to recording a notice of lien, the hearing officer shall provide notice pursuant to Government Code Section 38773.1. Any such lien not paid by June 30th of each year shall, upon adoption of a resolution by the city council, be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

7. As an alternative to a lien and pursuant to Government Code Section 38773.5, the expense of abatement may constitute a special assessment against a parcel of land owned by the owner. The assessment shall be collected as provided for in Government Code Section 38773.5.

8. In addition to any other remedy provided herein or available at law or equity, the expense of abatement pursuant to Government Code Sections 38773, 39773.1 and 38773.5 shall constitute a personal obligation against the property owner.

B. The recovery of the expenses of abatement of any nuisance resulting from the defacement of property by graffiti or any other inscribed material by a minor who has created, caused or committed the nuisance shall be according to the following procedures:

1. The city manager, or his or her designee (hearing officer), shall give the minor and the parent or guardian having custody and control of the minor not less than 48 hours' notice of a hearing to be held by the hearing officer for the purpose of showing cause why the city should not recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor. Following notice, the hearing shall be held by the hearing officer at the time, date and place designated and at such hearing the minor and the parent or guardian having custody and control of the minor may each be heard and provided with the opportunity to show cause why the city should not recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor. Following the hearing, the hearing officer shall determine whether the city should recover expense of abatement from the minor and the parent or guardian having custody and control of the minor.

2. If the hearing officer determines that the city should recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor, the city may provide an accounting of the expense of abatement along with a demand for payment to the minor and the parent or guardian having custody and control of the minor.

3. The parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor for the expense of abatement pursuant to Government Code Sections 38772, 38773.2 and 38773.6. If payment is not made within 30 days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of $100.00 plus interest on the unpaid amount plus penalty, which interest shall accrue at the rate of one and one-half percent per month until paid.

4. In the event the expense of abatement has not been paid within 30 days from the date of issuing an accounting and demand for payment, the amount unpaid including any penalty and interest therein, shall constitute a lien pursuant to Government Code Sections 38772 and 38773.2 against the property of the minor and against the property of the parent or guardian having custody and control of the minor. Prior to recording a notice of lien, the hearing officer shall provide notice pursuant to Government Code Section 38773.2. Any such lien not paid by June 30th of each year shall, upon adoption of a resolution by the city council, may be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

5. As an alternative to a lien and pursuant to Government Code Section 38773.6, the expense of abatement shall constitute a special assessment against a parcel of land owned by the minor or by the parent or guardian having custody and control of the minor. The assessment shall be collected as provided for in Government Code Section 38773.6.

6. In addition to any other remedy provided herein or available at law, the expense of abatement pursuant to Government Code Section 38772 shall constitute a personal obligation against the minor and a personal obligation against the parent or guardian having custody and control of the minor.

(Prior code § 3B-7)

The administration and enforcement of this chapter shall be the responsibility of the code enforcement official, or his or her duly authorized representative, who shall perform all duties in the manner authorized by law.

(Prior code § 3B-8)

The procedures set forth in this chapter are not exclusive and do not, in any manner, limit or restrict the city in the enforcement of other city ordinances or the abatement of public nuisances in any manner provided by law. Nothing in this chapter shall limit or prevent the city from initiating a criminal or civil action to abate a public nuisance, in addition to, or as an alternative to administrative abatement proceedings.

(Prior code § 3B-9)

A. Any person violating or failing to comply with any provision or mandatory requirement of this chapter shall be guilty of a misdemeanor unless charged as an infraction.

B. Each person guilty of a misdemeanor or infraction shall be guilty of a separate offense for each and every day during any portion of which any violation or any provision of this chapter is committed, continued or permitted by such person and shall be punished accordingly.

C. If charged as an infraction, each fine imposed for a violation of this chapter shall be:

1. A fine of $125.00 for a first time violation;

2. A fine of $250.00 for a second violation within a year;

3. A fine of $500.00 for each additional violation within one year.

D. Where there has been a conviction, or guilty or nolo contendere plea of a violation of this chapter, the court shall, in addition to any fine imposed pursuant to this chapter, and at the city's option, order the defendant to complete community service, including graffiti removal service, of not less than six hours and no more than 48 hours for a first conviction. Upon the second and subsequent conviction, a person shall be required, at the city's option, to perform community service, including graffiti removal service of not less than 48 hours and no more than 96 hours. A defendant shall be ordered to complete community service during a time other than during his or her hours of school attendance or employment.

E. Where there has been a conviction, or guilty or nolo contendere plea of a violation of this chapter, the court shall, in addition to any punishment imposed pursuant to this chapter, and at the victim's option, order the defendant to perform the necessary labor to cleanup, repair or replace the property damaged by that person.

F. Where there has been a conviction, or guilty or nolo contendere plea of a violation of this chapter, the court shall, in addition to any punishment imposed pursuant to this chapter, and as restitution, order the defendant to pay for any related costs incurred for the cleanup, repair, or replacement of the property damaged by that person.

G. If a minor is personally unable to pay any fine or restitution levied for violating any provision of this chapter, the parent or legal guardian of the minor shall be liable for payment of the fine and restitution.

H. In addition to any other penalties specified in this chapter or otherwise provided by law, upon the entry of a second or subsequent civil or criminal judgment within any period of 24 months finding that a person is responsible for a condition that may be abated in accordance with this chapter, the person shall be liable to the city for treble the amount of any costs incurred by the city for abatement of such conditions, as provided in Section 38773.7 of the Government Code.

(Prior code § 3B-10)