La Habra Municipal Code Ch. 9.54 Graffiti

The purpose of this chapter is to provide a program for abatement of graffiti from public and private property to reduce blight and deterioration within the city, protect public safety, and for the expeditious removal of graffiti from structures on both public and private property. The city council finds and determines as follows:

A. The increase of graffiti, on both public and private property, is creating a condition within the city which results in blight and deterioration of property values and of the comfortable enjoyment of life and property for adjacent and surrounding residents and owners, and contributes to the overall detriment of the city.

B. Graffiti constitutes a public nuisance and a threat to public safety which must be abated to alleviate the detrimental impact of such graffiti on the city, and to prevent the further spread of graffiti.

C. Certain categories of graffiti that incite violence are especially harmful and must be removed as quickly as possible to avoid or minimize harm to persons and the whole community.

D. The city council strongly recommends that when a person is convicted of violating this chapter that the court impose a long community service sentence, in addition to any other penalties imposed by the court.

E. The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. All the provisions of this chapter are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.

(Ord. 1720 § 2, 2010)

For the purposes of this chapter, the following words and terms shall have the meaning ascribed thereto:

"Adhesive stickers"

means any sheet of paper, fabric, plastic or other substance or material with an adhesive backing.

"Aerosol paint container"

means any aerosol container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint or other substances capable of being applied on public or private property in a manner that defaces the property.

"Bona fide evidence of majority and identity"

means any document evidencing or verifying the identity of an individual and that the individual is at least eighteen years of age, which has been issued by a federal, state or local government entity, and includes, but is not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal Selective Service Act, or an identification card issued to a member of the armed forces.

"City council"

means the city council of the city of La Habra.

"City manager"

means the city manager of the city of La Habra or his/her designee.

"Continuously viewable"

means within line of sight of an employee or store manager at all times during business hours. Continuously viewable shall include viewable via closed circuit security cameras.

"Director"

means the director of community services of the city of La Habra or his/her designee.

"Etching cream"

means any caustic cream, gel, liquid, or solution capable, by means of a chemical action, of defacing, damaging, or destroying surfaces.

"Etchers" or "etching tools"

means any sharp or pointed instrument, device or other mechanism, including but not limited to, glass etchers, metal etchers, cutting and grinding instruments, awls, chisels, glass cutters, drill bits or any other instrument that is capable of scratching or otherwise marking any surface, including but not limited to, glass, mirrors, windows, steel, aluminum, brass, tin, fiberglass, wood, plastic, concrete or any other surface.

"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, costs of administering and monitoring the participation of a defendant and his or her parents or guardians in a graffiti abatement program, disbursed reward money, and the law enforcement costs incurred by the city in identifying and apprehending the person who created, caused, or committed the graffiti on the publicly or privately owned real or personal property within the city.

"Graffiti"

means any unauthorized inscription, word, figure, symbol, configuration of letters and/or numbers or design that is marked, written, etched, scratched, drawn, scribed, stained, stuck on, affixed or adhered to by any means whatsoever or painted on any surface of public or private real or personal property, including but not limited to, buildings, walls, windows, signs, structures, places, rocks, landscape materials, or other surfaces and/or the interior or exterior of any other structure, regardless of the nature of the material of which the surface is composed. Graffiti shall also mean the unauthorized affixing of adhesive stickers to any surface whatsoever.

"Graffiti implement"

means an aerosol paint container, etching cream, etching tool, marking pen, a paint or graffiti stick, spray actuators, or other similar devices that may be used to scar or deface property.

"Graffiti violations of law"

are those violations referred to in Government Code Section 38772(d)(3), Penal Code Sections 594, 594.1, 594.2, 594.3, 594.8, 640.5, 640.6, 640.7 and 640.8, and any violation of this chapter.

"Marking pen"

means any marker pen or any similar implement containing an ink, paint, or other pigmented liquid.

"Not accessible to the public"

means that such supplies must be (1) stored under lock and key, and only the store manager or his/her designee shall have access to the supplies, or (2) stored behind or under a store counter that is only accessible to authorized store personnel.

"Paint stick" or "graffiti stick"

means a device containing a solid form of paint, wax, epoxy, or other similar substance capable of leaving a visible mark on a surface.

"Parent" or "guardian"

means a parent with legal custody, guardian, conservator, or relative caregiver of the minor.

"Relative caregiver"

means a relative, as defined in Section 6550(i) of the California Family Code, who assumed primary responsibility for the minor while the child was in the relative's care and control, and who is not a biological or adoptive parent.

"Person responsible for the abatement costs"

means (1) the person who defaced property by means of graffiti, or the parents or guardians of the person who defaced property by means of graffiti if the person is a minor, or (2) the owner or person in lawful possession of the property upon which the graffiti nuisance is maintained.

"Spray actuator" (also known as a "spray tip," "nozzle," or "button")

means an object or device that is capable of being attached to an aerosol or other paint container for the purpose of spraying the substance contained therein.

"Statement of costs" or "itemized statement of costs"

means an itemized statement of the expense of abatement for one or more graffiti nuisance, which the director ordered removed using city funds. It shall include, but not be limited to, unit costs for materials, as well as hourly rates for city personnel responsible for the abatement.

(Ord. 1720 § 2, 2010)

A. It shall be unlawful for any person to apply graffiti to any surface on any public or privately owned real or personal property within the city.

B. It shall further be unlawful for any person to solicit or command another person to apply graffiti, or for any person to aid or abet, or agree to aid or abet another person to plan to apply graffiti, including but not limited to, acting as a "lookout."

(Ord. 1720 § 2, 2010)

The application of graffiti by any person, pursuant to Section 9.54.030 of this chapter is declared to constitute a public nuisance, which may be summarily abated.

(Ord. 1720 § 2, 2010)

A. Implement Possession. It shall be unlawful for any person to have in his or her possession any graffiti implement with the intent to apply graffiti, while upon public or private property.

B. Implement Possession by Minors. It shall be unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement with the intent to apply graffiti, while upon public or private property.

C. Sale of Graffiti Implements to Minors. It shall be unlawful for any person, other than a parent or guardian, to knowingly sell, exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged, given, loaned or otherwise furnished, any graffiti implement to anyone under the age of eighteen years.

D. Proper Identification Presented Prior to Sale. No person shall sell any pressurized can containing paint or dye, marking pens, etchers or any other graffiti implement without first obtaining bona fide evidence of majority and identity from the purchaser.

(Ord. 1720 § 2, 2010)

A. Restricted Access. Aerosol paint containers and actuators shall not be accessible to the public in the regular course of business without employee assistance, pending legal sale or disposition of such supplies.

B. Continuously Viewable Implements.

1. Every person who owns, conducts, operates or manages a retail commercial establishment selling paint sticks, marking pens, or etching creams shall store or cause such supplies to be stored in an area continuously viewable by store employees.

2. Etching Tools. Every person who owns, conducts, operates or manages a retail commercial establishment selling masonry or glass drill bits, carbide drill bits, glass cutters, grinding stones, awls, chisels or carbide scribes, or other similar implement shall store or cause such items to be stored in an area continuously viewable by store employees.

C. Customer Signage. Every retail commercial establishment selling graffiti implements shall post a sign in clear public view at or near display of such products stating: "Pursuant to Penal Code Section 594.1, Graffiti is against the law. Any person who defaces real or personal property with paint or any other liquid, tool, or device is guilty of a crime punishable by imprisonment of up to six months and/or a fine up to $1,000."

D. Additional Signage. Every retail commercial establishment selling graffiti implements shall place a sign in the direct view of such persons responsible for accepting customer payment for graffiti implements stating: "Pursuant to La Habra Municipal Code Title 9, Section 9.54.050, selling Graffiti Implements to persons less than 18 years of age is against the law and punishable by six months in jail and/or a fine of 8$1,000."

E. Merchandise Inventory. Upon request of a La Habra police officer or community preservation officer, any person who owns, conducts, operates or manages a retail commercial establishment selling graffiti implements shall provide copies of any merchandise inventory.

(Ord. 1720 § 2, 2010)

A. Any violation of this chapter shall be a misdemeanor offense punishable by either six months in jail, a one thousand dollar fine, or both such fine and imprisonment.

B. In lieu of, or in addition to the penalties specified in this section, a minor or other person who is convicted of or pleads guilty or nolo contendere to graffiti violations shall be required to perform community service as ordered by the court, based on the following minimum requirements:

1. The minor or adult shall perform not less than forty hours of community service.

2. The period of community service shall be performed under the supervision of a community service provider approved by the chief of police.

3. Reasonable effort shall be made to assign the minor or other person to a type of community service that is reasonably expected to have the most rehabilitative effect on the minor or other person.

(Ord. 1720 § 2, 2010)

A. Pursuant to Section 53069.5 of the Government Code, the city may offer a reward of up to two thousand dollars. The amount of the award is to be determined by the police chief, for information leading to the arrest and conviction of any person for violation of Penal Code Section 594 or Section 9.54.030 of this chapter, the use of graffiti, not to exceed one reward of two thousand dollars per violation. In the event of multiple contributors of information for a single violation, the reward amount shall be divided by the city in the manner deemed appropriate by the police chief. 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. The chief of police may award up to five hundred dollars to any person who provides credible information regarding any graffiti violation in the city, which leads to probable cause for an arrest of an individual(s).

B. Claims for rewards under this section shall be filed, processed, and paid in accordance with procedures established by the police chief.

C. The person convicted of committing the graffiti offense shall be liable for any rewards paid pursuant to this section and, if that person is an unemancipated minor, the parent or guardian of the minor shall be jointly and severally liable for any rewards paid pursuant to this section.

(Ord. 1720 § 2, 2010)

A. 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 ("property owner"), to permit property that is defaced with graffiti to remain so defaced for a period of seven days after notice of same, unless: (1) the property owner shall demonstrate by a preponderance of evidence that he or she does not have the financial or physical ability to remove the defacing graffiti; or (2) it can be demonstrated that the property owner 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 shall be unlawful to permit such property defaced with graffiti to remain defaced for a period of fifteen days after notice of same.

B. The existence of any surface of a structure on a parcel of land which has been defaced with graffiti after removal more than five times in twelve months by the city at its expense is a public and private nuisance, and may be abated by modifications to the structure or surface, or to the immediate surrounding area. The structure or surface may be required to be retrofitted, at the cost of the property owner, with such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof.

C. Whenever the city becomes aware or is notified and determines that graffiti is located on publicly or privately owned property within the city, the city shall be authorized to use city funds for the removal of the graffiti, or painting or repairing the property, 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 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 property owner or the person causing the graffiti, or if a minor, his or her parent or guardian, agree to or are ordered to pay for the costs of repainting or repairing the more extensive area.

D. The owner of property on which is located a surface of a structure other than residential which has been defaced with graffiti after removal more than five times in twelve months, or the immediate surrounding area, shall permit the city to enter upon and make such modifications there, at the city's cost. The modifications shall include such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof.

E. To further discourage graffiti while providing overall consistency, utility fixtures and equipment shall be of a uniform paint-type and color. Any gas, electric, telephone, water, sewer, cable, telephone and other utility operation in the city of La Habra shall paint its above-surface metal fixtures with a uniform paint type and color which meets with the approval of the city manager. Since most utility fixtures and equipment are located in the public rights-of-way and are highly visible, graffiti on these structures shall be removed by the utility company within forty-eight hours of being reported to the utility.

(Ord. 1720 § 2, 2010)

A. The city may use city funds to remove graffiti from publicly or privately owned real or personal property located within the city, and to replace or repair public or privately owned property within the city that has been defaced with graffiti that cannot be removed cost effectively.

B. The city shall only remove the graffiti itself, or, if the graffiti cannot be removed cost effectively, the repair or replacement of the portion of the property that was defaced, and not the painting, repair, or replacement of other parts of the property that were not defaced.

C. The removal, repair, or replacement may be performed, in the case of publicly owned real or personal property, only after securing the consent of the public entity having jurisdiction over the property, and in the case of privately owned real or personal property, only after securing the consent of the owner or possessor.

D. The La Habra police department may promulgate procedures for pre-removal preservation of sufficient evidence of the graffiti for criminal prosecutions or proceedings pursuant to Section 602 of the Welfare and Institutions Code pertaining to the person or persons who inscribed the graffiti. These procedures shall be followed by the city prior to or during removal of the graffiti.

(Ord. 1720 § 2, 2010)

The city may summarily abate any nuisance at the expense of the persons creating, causing, committing, or maintaining it.

(Ord. 1720 § 2, 2010)

A. The city shall summarily abate any nuisance resulting from the defacement of the property of another by graffiti.

B. The abatement may be made at the expense of the minor or other person creating, causing, committing or maintaining the nuisance.

C. Where the director is required to cause the abatement of a public nuisance pursuant to the provisions of this chapter, he/she shall keep an accounting of the cost thereof, including incidental expenses for the abatement. The term "incidental expenses" includes, but is not limited to, the actual expenses and costs of the city in the preparation of notices, specifications and contracts, inspection of the work, and the cost of printing and mailing any notices required by this chapter, as well as administrative costs.

D. Within thirty days of the conclusion of the abatement, the director shall submit an itemized statement of costs to the city manager. The city manager shall cause notice of statement of costs to be given to the person causing the nuisance, and to his/her parents or guardian in the event the person causing the nuisance is a minor, by United States mail, postage prepaid, addressed to the person at his/her last known address. The statement of costs shall be due and payable within thirty days of the date of the statement.

E. The notice of the statement of costs shall include the following information:

1. The itemized statement of costs;

2. The date by which payment of the abatement costs must be made;

3. The date by which the appeal must be received by the city;

4. That the appeal must be in writing and where the appeal shall be mailed or delivered;

5. That the cost statement appeal hearing, if requested, shall take place within forty-five days of receipt of the written appeal;

6. Reference to the relevant sections in the La Habra Municipal Code; and

7. Contact information.

F. Statement of Costs Appeal.

1. Written Appeal. The person responsible for the cost of abatement of the graffiti nuisance may contest the statement of costs by filing a written request for a cost hearing with the city manager within twenty days of the date of the notice. The city manager shall set a hearing within forty-five days of receipt of the timely request for appeal, and shall notify the applicant of the date of the hearing by United States mail no less than fifteen days before the hearing. A copy of the statement of costs, and any supporting documentation, shall be provided to the appellant at the time of the notice of the date of the hearing.

2. Cost Hearing. At the cost hearing, the city manager shall hear and pass upon the statement of the director, together with any objections or protests raised by any of the persons liable to be assessed for the cost of abating the nuisance. The city manager may hear any relevant evidence at the cost hearing; the formal rules of evidence shall not apply. Thereupon, the city manager shall make such revision, correction and modification to the statement as he/she may deem just, after which the statement is submitted, or as revised, corrected or modified shall be conformed. The city manager shall issue a written decision within ten days of the hearing, and it shall include reference to Sections 1094.5 and 1094.6 of the Code of Civil Procedure. The decision of the city manager shall be final.

3. Right to Judicial Review. If the city manager's decision is in favor of the city, the appellant may seek judicial review of the city manager's decision by filing a petition for writ of mandate pursuant to California Code of Civil Procedure Sections 1094.5 and 1094.6.

(Ord. 1720 § 2, 2010)

A. The expense of abatement of any nuisance, resulting from the defacement by any person against the property of another by graffiti, shall be a lien against property of the person and a personal obligation against the person.

B. The expense of abatement of any nuisance, resulting from the defacement by a minor of the property of another by graffiti, shall be a lien against the property of a parent or guardian, having custody and control of the minor, and a personal obligation against the parent or guardian having custody and control of the minor, pursuant to Government Code Sections 38772 and 38773.6. When the person causing the graffiti nuisance is a minor, then the parent or guardian of the minor shall be jointly and severally liable with the minor.

C. The property of the minor causing the graffiti nuisance, and the property of the parent or guardian of the minor, shall collectively or individually be referred to as the "assessed property."

D. Assessment of costs/liens against the assessed property. In the event of non-payment of the statement of costs, the city manager may cause the cost of abatement of the graffiti nuisance to constitute a special assessment against the assessed property.

1. Pursuant to California Government Code Sections 38772 and 38773.6, all expenses as determined by the Hearing Officer in connection with such abatement shall be charged and become an indebtedness to the owner of the assessed property, as well as a lien upon the assessed property.

2. Pursuant to California Government Code Section 38773.6, the confirmed cost of abatement of a graffiti nuisance within the city shall constitute a special assessment against the lot or parcel of land that comprise the assessed property. After confirmation of the statement of cost, a copy thereof shall be transmitted to the Orange County Auditor/Controller, whereupon it shall be the duty of the Auditor/Controller to add the amounts of the assessment, or assessments, to the next regular bills of taxes levied against the respective lots and parcels of land that comprise the assessed property for municipal purposes, and thereafter the 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 penalties and the same procedure for foreclosure and sale in case of delinquency as provided for ordinary municipal taxes.

(Ord. 1720 § 2, 2010)

A. The city may make the expense of abatement of nuisances a lien against the property on which it is maintained and a personal obligation against the property owner, in accordance with California Government Code Sections 38773 and 38773.5.

B. Assessment of costs/liens against property. In the event of non-payment of the statement of costs, the city manager may cause the cost of abatement of the graffiti nuisance to constitute a special assessment against the property where the nuisance was maintained, as follows:

1. Pursuant to California Government Code Sections 38773 and 38773.5, all expenses as determined by the city manager in connection with such abatement shall be charged and become an indebtedness to the owner of such structure or premises, as well as a lien upon the affected property as elsewhere herein provided.

2. Pursuant to California Government Code Section 38773.5, the confirmed cost of abatement of a nuisance upon any lot or parcel of land shall constitute a special assessment against the respective lot or parcel of land to which it relates. After confirmation of the statement of cost, a copy thereof shall be transmitted to the Orange County Auditor/Controller, whereupon it shall be the duty of the Auditor/Controller to add the amounts of the assessment, or assessments, to the next regular bills of taxes levied against the respective lots and parcels of land for municipal purposes, and thereafter the 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 penalties and the same procedure for foreclosure and sale in case of delinquency as provided for ordinary municipal taxes.

(Ord. 1720 § 2, 2010)

Notwithstanding any of the provisions of Sections 9.54.120 and 9.54.130, the city may seek civil restitution for the cost of abatement of any nuisance resulting from the defacement of the property of another by graffiti as follows:

A. Any person that causes any injury to or the defacement of the property of another by any act of graffiti shall be personally liable for any damages resulting from the graffiti, pursuant to California Civil Code Section 1714.

B. Any act of graffiti by a minor that results in any injury to or the defacement of property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, including the cost of abatement to the prevailing party, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the graffiti, not to exceed twenty-five thousand dollars except as provided in subsection C of this section, for each tort of the minor.

C. The amount listed in subsection A of this section shall be adjusted every two years in accordance to the amounts set by the judicial council to reflect any increases in the cost of living in California, as indicated by the annual average of the California Consumer Price Index, pursuant to California Civil Code Section 1714.1.

D. The maximum liability imposed by this section is the maximum liability authorized under this section at the time that the act of graffiti by a minor was committed.

(Ord. 1720 § 2, 2010)

The city, at its discretion, may pursue any and all legal and equitable remedies for the collection of unpaid fines, interest and penalties, including but not limited to a collection agency. Pursuit of one remedy does not preclude the pursuit of any other remedies until the total fines, interest and penalties owed by a person under this chapter have been collected.

(Ord. 1720 § 2, 2010)