Kern County Municipal Code Ch. 9.42 Graffiti Prohibition, Abatement and Abatement Expense Recovery

A. The purpose of this chapter is to help prevent the spread of graffiti and to establish a program for its removal from county-owned property and non-county owned property within the unincorporated area of the county.

B. California Government Code sections 53069.3 and 38772 authorize the county, under certain circumstances, to provide for the removal and the summary abatement of graffiti from private as well as public property. The board of supervisors finds and determines that graffiti is obnoxious and a public nuisance, as well as an immediate threat to public health and safety from gang activity, crime and violence, and unless the county causes it to be removed from county-owned and non-county-owned property within the unincorporated area of the county, it tends to remain and increase in scope and severity. Other properties then become the target of graffiti, often accompanied by more violent crime, with the result that entire neighborhoods are affected and become less desirable places in which to be, all to the detriment of the county.

C. It is the purpose of the board of supervisors of the County of Kern, 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 walls, natural objects and structures. Such acts are destructive of the rights and values of property owners as well as the entire community.

(Ord. G-7792 § 2 (part), 2008)

For the purposes of this chapter, the following words shall have the meanings respectively ascribed to them in this section:

A. "Graffiti" means any unauthorized marking, inscription, word, design, writing or picture which is marked, etched, scratched, drawn, or painted upon any public or private property, either real or personal, including any structure, wall, fence, sidewalk, sign, public utility box or any structural component of any building, bridge, structure or facility.

B. "Person" means a minor or other person who has confessed to, admitted to, or pled guilty or nolo contendere to a violation of Section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code, or a minor convicted by final judgment of a violation of Section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code, or a minor declared a ward of the Juvenile Court pursuant to Section 602 of the Welfare and Institutions Code by reason of the commission of an act prohibited by Section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code.

C. "Expense of abatement" includes, but is not limited to, court costs, attorney's fees, costs of removal of the graffiti, costs of repair and replacement of defaced property, and the law enforcement costs incurred by the county in identifying and apprehending the offending person.

(Ord. G-7792 § 2 (part), 2008)

A. It is unlawful for any person to apply graffiti to or on any public or private property within the unincorporated area of the county.

B. Violation of subsection (A) of this section shall be subject to enforcement through civil abatement, judicial proceedings, liens on real property, administrative fines, criminal proceedings, juvenile court proceedings and/or any other remedy provided by law.

(Ord. G-7792 § 2 (part), 2008)

Every person, not authorized by the proper authority to do so, who unlocks, in any manner, any lock, gate, door or any other appurtenance, which lock, gate, door or other appurtenance is owned or under the control of the County of Kern is guilty of a misdemeanor.

(Ord. G-7792 § 2 (part), 2008)

A. Juvenile Court Restitution Order. In cases where a petition has been filed pursuant to section 602 of the Welfare and Institutions Code, the probation officer of the county may seek recovery through juvenile court proceedings in accordance with sections 742.14 and 742.16 of the Welfare and Institutions Code of the costs associated with the defacement by minors of its property and the property of others by graffiti.

B. Findings regarding costs incurred by the sheriff's office in identification and apprehension. The board of supervisors finds that the average cost incurred by the sheriff's office in identifying and apprehending a person subsequently convicted of a violation of section 594, 594.3, 594.4, 640.5, 640.6, or 640.7 of the Penal Code or a minor subsequently found to be a person described in section 602 of the Welfare and Institutions Code by reason of the commission of an act prohibited by section 594, 594.3, 594.4, 640.5, 640.6, or 640.7 of the Penal Code is $931.00 (nine hundred and thirty one dollars).

C. Findings Regarding Costs Incurred for Removal, Repair, and/or Replacement. The board of supervisors finds that the average cost to the county of painting over graffiti in the Bakersfield metropolitan area is $55.55 (fifty five dollars and fifty five cents) per incident of graffiti vandalism.

D. Transmittal and Periodic Review of Findings. A certified copy of the ordinance containing the findings set forth in subsections (B) and (C), above, shall be transmitted to the clerk of the juvenile court and the probation officer. The findings set forth in subsections (B) and (C), above, shall be reviewed at least once every three (3) years at which time the board of supervisors shall adopt any updated cost findings.

E. Transmission of Data to Probation Officer. As provided by Welfare and Institutions Code section 742.16, the county shall transmit to the probation officer its data about its expenditure of resources in identifying and apprehending any minor about whom a petition is filed alleging that the minor is a person described in section 602 of the Welfare and Institutions Code by reason of commission of an act prohibited by section 594, 594.3, 594.4, 640.5, 640.6, or 640.7 of the Penal Code, and its expenditure of resources to remove graffiti or other material inscribed, or to repair or replace property where it is not cost effective to remove graffiti or other inscribed material, by any minor about whom a petition is filed alleging that the minor is a person described in section 602 of the Welfare and Institutions Code by reason of commission of an act prohibited by section 594, 594.3, 594.4, 640.5, 640.6, or 640.7 of the Penal Code.

(Ord. G-7792 § 2 (part), 2008)

A. Summary Abatement. Pursuant to Government Code section 53069.3, and notwithstanding Section 9.30.070 of this code, the County Administrative Office—General Services Division may summarily abate any nuisance resulting from the defacement of the property of another by graffiti at county expense and may recover said expense of abatement from the person creating, causing, or committing the nuisance and make the expense of abatement of the nuisance a lien against the property of such person or persons and a personal obligation of such person or persons.

B. Joint and Several Liability of Parent or Guardian. The parent or guardian having custody and control of a minor creating, causing, or committing a nuisance described in subdivision (A), shall be jointly and severally liable with the minor for the expense of abatement. The unpaid expense of abatement of any nuisance resulting from the defacement of the property of another by graffiti shall become a lien against the property of a parent or guardian having custody and control of the minor causing, creating or committing the nuisance, and a personal obligation against the parent or guardian having custody and control of the minor causing, creating or committing the nuisance.

C. The county probation officer shall report the names and addresses of the parents or guardians having custody and control of a minor committing a nuisance described in subdivision (A), if known, to the County Administrative Office—General Services Division.

D. Collection of Expenses of Abatement.

1. Abatement Expense Statement. Upon the determination of the expense of abatement, the County Administrative Office—General Services Division shall send an abatement expense statement to the responsible person(s) pursuant to subdivision (A), and, if applicable, subdivision (B), above. Payment shall be due fifteen (15) days from the date of mailing of the abatement expense statement.

2. Hearing—Notice.

a. Within fifteen (15) days of the mailing of the abatement expense statement, any person named in the statement may file with the county representative who issued the statement, a written request for a hearing on the correctness, reasonableness, or both of such claim of abatement costs. The County Administrative Office—General Services Division, shall then cause notice of the time and place of the hearing before the Director of the County Administrative Office—General Services Division or his or her designee to be given to the person requesting the same by the United States mail, postage prepaid, addressed to the person at his/her last known address at least ten (10) days in advance of the hearing.

b. At the hearing, the Assistant County Administrative Officer for General Services or his or her designee shall receive all evidence presented by the responsible person and by the county concerning the abatement expense statement. Thereupon, the Assistant County Administrative Officer for General Services or his or her designee shall make such revision, correction, and modification to the statement as deemed warranted, after which the statement as submitted, or as revised, corrected, or modified, shall be confirmed. The County Administrative Office—General Services Division, shall then serve notice of the decision by certified or registered mail on the responsible person(s) at his/her last known address.

c. Right to Appeal Administrative Order to Board of Supervisors.

(i) The responsible party(s) subject to an administrative order issued by the Director of the County Administrative Office—General Services Division or his or her designee after a hearing, may contest the administrative order by filing an appeal with the clerk of the board of supervisors within fifteen (15) days from service of the administrative order.

(ii) The decision of the Director of the County Administrative Office—General Services Division or his or her designee may be considered de novo by the board of supervisors. The board of supervisors may reverse, affirm wholly or partly, or modify the administrative order. The decision of the board of supervisors on any such appeal shall be final on adoption of an order containing its determination. Notice of the final decision shall be served by certified or registered mail on the responsible person(s).

(iii) Pursuant to Section 1085 of the Code of Civil Procedure, any person who has been named in an order issued pursuant to this subdivision D may, following exhaustion of administrative remedies, seek judicial review of the order by filing a petition for writ of mandate within ninety (90) days after service of the order. The filing of a petition for writ of mandate to review the order shall not stay payment of any sum due specified in the order.

d. Suspension of Abatement Costs. The obligation to pay the expenses of abatement otherwise required under subdivision (D) of this section shall be suspended during the pendency of any administrative hearing provided for under subsection (D). Upon the Assistant County Administrative Officer for General Services or his or her designee or the board of supervisors rendering of a decision following a hearing, payment of the confirmed, vacated or otherwise revised, corrected, or modified abatement expense statement shall be made within fifteen (15) days following service of the decision on the responsible person or persons.

3. Lien Against Real Property for Unpaid Expenses.

a. The county may make the unpaid expenses of abatement a lien against the property of the person, creating, causing, or committing a nuisance described in subdivision (A), above, and, where such person is a minor, against the property of the parent or guardian having custody and control of such minor at the time such nuisance was created, caused, or committed.

b. Notice. Notice shall be given to the person and to the parent or guardian having custody and control of the minor creating the nuisance prior to the recordation of a lien on the parcel of land owned by the person causing, creating or committing the nuisance, or owned by the parent or guardian having custody and control of the minor causing, creating or committing the nuisance.

c. Service of Notice. Notice shall be served in the same manner as a summons in a civil action pursuant to Article 3 (commencing with section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. If the minor or other person, and/or the parent or guardian having custody and control of the minor, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the minor or other person, and/or the parent or guardian having custody and control of the minor, in a conspicuous place, for a period of ten (10) days. The notice shall also be published pursuant to Government Code section 6062 in a newspaper of general circulation that is published in the county in which the property is located.

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

e. 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.

f. If the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection (e), above, shall be recorded by the county. A graffiti nuisance abatement lien and the release of the lien shall be indexed in the grantor- grantee index,

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

h. As provided in Government Code section 38773.2, the county recorder may impose a fee on the county to reimburse the costs of processing and recording the lien and providing notice to the property owner. The county 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.

4. Assessment of Costs Against Property For Unpaid Expenses. Pursuant to Government Code sections 53069.3 and 38773.6 and Chapter 8.44 of Title 8 of this code, any unpaid expense of abatement, as confirmed by the board of supervisors, shall constitute a special assessment against the lot or parcel of property owned by the person creating, causing or committing a nuisance described in subsection (A), above, and, where such person is a minor, against the lot or parcel of property owned by the parent or guardian having custody and control of such minor at the time the nuisance is created, caused or committed, and upon recordation in the Office of the Kern County Recorder of a notice of lien, as so made and confirmed, shall constitute a lien on the property for the amount of such assessment.

a. After such confirmation and recordation, a copy shall be filed with the Assessor and Tax Collector of Kern County in order that said officials may add the amounts of the respective assessments to the next regular tax bills levied against the respective lots and parcels of land, and thereafter said amounts 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 procedure under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes; or

b. After such recordation, such lien may be foreclosed by judicial or other sale in the manner and means provided by law.

E. Upon the entry of a second or subsequent civil or criminal judgment or juvenile court disposition within a two-year period finding a person is responsible for creating, causing or committing a nuisance by application of graffiti, except for conditions abated pursuant to section 17980 of the Health and Safety Code, the court may order that person to pay treble the costs of the abatement.

(Ord. G-7792 § 2 (part), 2008)

A. Pursuant to Section 53069.5 of the Government Code, the county may offer a reward in an amount to be established by resolution of the board of supervisors for information leading to the identification and apprehension of any person who willfully damages or destroys any county-owned property, or without the permission of the owner or occupant, any non-county-owned property within the unincorporated area of the county, by the use of graffiti. In the event of damage to public property, the offender or the parent or legal guardian of any unemancipated minor must reimburse the county for any reward paid. In the event of multiple contributors of information, the reward amount shall be divided by the county 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.

B. Claims for rewards under the section shall be filed with the County Administrative Office—General Services Division.

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

(Ord. G-7792 § 2 (part), 2008)

If any section, subsection, sentence, clause, phrase, or portion of this chapter is for any reason deemed or held to be invalid by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this chapter. The board of supervisors hereby declares that it would have adopted this chapter and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more of the sections, subsections, phrases, clauses, or portion might subsequently be declared invalid or unconstitutional.

(Ord. G-7792 § 2 (part), 2008)