La Mesa Municipal Code Ch. 10.10 Prohibition of Application of Graffiti to Private or Public Property,…

It is the purpose and intent of the city council of the city of La Mesa, through the adoption of this chapter, to provide additional enforcement tools to protect public and private property from acts of vandalism and defacement; especially, but not limited to, graffiti on privately- and publicly-owned walls, which are inimical and destructive of the rights and values of private property owners as well as the total community.

(Ord. 2613 § 1 (part); November 10, 1992)

The following definitions shall apply in this chapter:

(a) "Graffiti" means any inscription, word, figure, or design that is marked, etched, scratched, drawn, painted, pasted or otherwise affixed to or, on any surface, regardless of the nature of the material of that structural component, to the extent that same was not authorized in advance by the owner thereof, or, despite advance authorization, is otherwise deemed by the council to be a public nuisance. Said definition specifically includes the unauthorized application of posters and stickers to public and private property commonly known as "guerilla art."

(b) "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 substance capable of defacing property.

(c) "Felt tip marker" means any marker or similar implement with a tip which, at its broadest width is greater than one-fourth inch.

(d) "Paint stick" means a device containing any 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-fourth of an inch in width, visible from a distance of twenty feet.

(e) "Etching tool" means any scribe, engraving pen, glass cutter etching pen, chemical pen, or similar implement which is adapted to or made for the purpose of leaving permanent marks on glass, plastic, or similar materials.

(f) "Graffiti implement" means an aerosol paint container, a felt tip marker, a paint stick, an etching tool, or any other marking substance.

(g) "Responsible person" means any person who owns, controls, or possesses property or who has primary responsibility for the repair or maintenance of property.

(h) "Minor" means a person under eighteen years of age.

(i) "Deface" means the intentional altering of the physical shape or physical appearance of property.

(j) "Hearing officer" means the city manager or his/her designee.

(k) "Marking substance" means any substance or implement, other than aerosol paint containers and felt tip markers, that could be used to draw, spray, paint, etch, or mark.

(Ord. 2613 § 1 (part); November 10, 1992: Ord. 2657 §§ 1, 2; January 25, 1995: Ord. 2000-2706 § 1; July 25, 2000)

(a) Unlawful to Apply Graffiti. It shall be unlawful for any person to apply graffiti on any public or privately owned property within the city.

(b) Possession of Graffiti Implement 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 while upon public property or upon private property without the consent of the owner of such private property, whose consent is given in advance, and whose consent shall be given as to the person's presence while in the possession of a graffiti implement.

The foregoing provision shall not apply while the person is attending, or traveling to or from a school at which the person is enrolled, if the person is participating in a class at said school which has, as a written requirement of said class, the need to use felt tip markers.

(c) Possession in Designated Public Places. No person shall have in his or her possession any graffiti implement while in any public park, playground, swimming pool, recreational facility, or while loitering in or near an underpass, bridge abutment, storm drain, and other similar types of infrastructure not normally used by the public except as may be authorized by the city.

(d) Conformance with California State Law. This section is not intended to conflict with California Penal Code Section 594.1.

(Ord. 2613 § 1 (part); November 10, 1992)

(a) Mandatory Juvenile Delinquent Community Service. Any minor determined to be a ward of the court under Welfare and Institutions Code Section 602 as a result of committing an offense in the city shall be required, at the city's option, to perform community service, including graffiti removal service, of not less than twenty-four hours nor more than eighty hours.

(b) Penalties for Violation. Any and all violations of this chapter shall be a misdemeanor, punishable by a fine up to one thousand dollars and/or up to one year in jail.

(c) Liability of Parent or Guardian. Any violation by a minor of Section 10.10.030 which results in damage to property, not in excess of ten thousand dollars, shall cause the parent or guardian, having custody and control of the minor, to be jointly and severally liable with the minor for any damages resulting from the willful misconduct. The city manager shall have the authority to seek reimbursement for victims of unauthorized graffiti placement pursuant to Civil Code Section 1714.1.

(Ord. 2613 § 1 (part); November 10, 1992: Ord. 2619 § 1; February 9, 1993: Ord. 2640 §§ 1, 2; January 11, 1994: Ord. 2657 § 3; January 24, 1995)

It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause to permit to be exchanged, given, loaned, or otherwise furnished, any graffiti implement to any person under the age of eighteen years without the consent of the parent or other lawfully designated custodian of the person, which custodial consent shall be given in advance in writing.

(Ord. 2613 § 1 (part); November 10, 1992)

No person, firm or entity engaged in a commercial enterprise ("seller") shall display for sale, trade or exchange, any graffiti implement except in an area under the control of the seller's employee(s). The three acceptable methods for displaying a graffiti implement for sale shall be:

(a) In a completely enclosed cabinet or other storage device which shall be permanently affixed to a building or building structure, which shall, at all times except during access by authorized representatives, remain securely locked.

(b) In an enclosed area behind a sales or service counter from which the public is precluded from entry.

(c) In an area under the direct visual supervision of employees at all times during business hours.

(Ord. 2640 § 3, January 11, 1994)

(a) Right of City to Require Removal (self-removal). It shall be unlawful for the responsible person to permit graffiti to remain in a manner visible to persons using any public rights-of-way in the city, provided the city has given the responsible person written notice to remove the graffiti within seven calendar days and said period has elapsed. The hearing officer may grant an extension of time for removal of graffiti where removal within the seven day period is impractical or would impose an undue hardship.

In the event that the responsible person elects to remove graffiti by painting over the graffiti, he or she shall do so in a manner which matches the surrounding paint to the greatest degree practicable.

(b) Declaration of Nuisance. The existence of graffiti within the city limits is a public and private nuisance, and may be abated according to the provisions and procedures herein contained.

(Ord. 2613 § 1 (part); November 10, 1992)

(a) 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 hearing officer 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 responsible person agrees to pay for the costs of repainting or repairing the more extensive area.

(b) Right of Entry on Private Property Provisions.

(1) Securing Owner Consent. 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 property owner, and a release of the city from liability for private or public property or liability damage.

(2) Failure to Obtain Owner Consent. If a responsible person fails to remove the offending graffiti within the time herein specified, or if the city shall have requested consent to remove or paint over the offending graffiti and the responsible person shall have refused consent for entry on terms acceptable to the city consistent with the terms of this section, the city shall commence abatement and cost recovery proceedings for the removal of the graffiti according to the following procedure.

(3) Abatement and Cost Recovery Proceedings.

a. Notice and Conduct of Due Process Hearing. The hearing officer shall give not less than forty-eight hours notice, served in the same manner as summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure, to the responsible person. The determination of the hearing officer after the "due process" hearing shall be final and not appealable. If, after the due process hearing, regardless of the attendance of the responsible person, or their respective agents, the hearing officer determines that the property contains graffiti viewable from a public or quasi-public place, the hearing officer shall give written notice ("eradication order") that, unless the graffiti is removed within five days thereafter, the city shall enter upon the property, cause the removal, painting over (in such color as shall meet with the approval of the hearing officer) or such other eradication thereof ("eradication effort") as the hearing officer determines appropriate, and shall provide the responsible person thereafter with an accounting of the costs of such eradication effort on a "full cost recovery" basis.

b. Eradication Effort. Not sooner than the time specified in the order of the hearing officer, the hearing officer shall implement the eradication order, and shall provide an accounting to the responsible person of the costs thereof ("eradication accounting").

c. Cost Hearing. If the responsible person fails to request a hearing before the hearing officer on the eradication accounting ("cost hearing"), or if requested, and a cost hearing is conducted after extending due process to the responsible person, after such a cost hearing, the hearing officer determines that all or a portion of the costs are appropriately chargeable to the eradication effort, the total amount set forth in the eradication accounting, or such amount thereof determined as appropriate by the hearing officer, ("assessed eradication charges") shall be due and payable by the responsible person within thirty days. Any amount of assessed eradication charges assessed by the hearing officer which are less than the total amount set forth in the eradication accounting shall be explained by written letter from the hearing officer to the city councilmembers.

d. Lien. As to such property where the responsible person is the owner, if all or any portion of the assessed eradication charges remain unpaid after thirty days, pursuant to the authority created by law, including Government Codes Section 38773, et seq., such portion thereof as shall remain unpaid shall constitute and is hereby declared to constitute a lien on the property which was the subject matter of the eradication effort. The hearing office shall present a resolution of lien to the city council, and upon passage and adoption thereof, shall cause a certified copy thereof to be recorded with the San Diego County Recorder's Office.

(Ord. 2613 § 1 (part); November 10, 1992)

(a) Common utility colors and paint-type. Any gas, electric, telephone, water, sewer, cable and other utility operating in the city shall paint their above-surface metal fixtures with a uniform paint type and color for each utility which meets with the approval of the hearing officer.

(b) Condition encroachment permits. All encroachment permits issued by the city may, among such other things, be conditioned on (1) the permittee shall apply an anti-graffiti material to the encroaching object of a type and nature that is acceptable to the hearing officer; (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; (4) providing city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of encroaching object containing graffiti, and (5) other design features including but not limited to (a) use of a protective coating to provide the effective and expeditious removal of graffiti; (b) use of additional lighting; (c) use of non-solid fencing; (d) use of landscaping designed to cover large expansive walls such as ivy or similar clinging vegetation; and (e) use of architectural design to break up long continued walls or solid areas.

(Ord. 2613 § 1 (part); November 10, 1992)

(a) Design of graffiti-attracting surfaces. Any applicant for design review approval, conditional use permit, special use permit, unclassified use permit, development agreement, or other form of development or building permit shall, to the extent deemed feasible by the director of community development, have designed any existing or proposed building structures visible from any public or quasi-public place in such a manner to consider prevention of graffiti, including, but not limited to the following: (a) use of a protective coating to provide for the effective and expeditious removal of graffiti; (b) use of additional lighting; (c) use of non-solid fencing; (d) use of landscaping designed to cover large expansive walls such as ivy or similar clinging vegetation; and (e) use of architectural design to break up long continuous walls or solid areas.

(b) Retro-fit existing graffiti-attracting surfaces. This may be incorporated in the eradication order during an abatement hearing.

(1) At owner's expense. Any surface of a structure on a parcel of land placed in any land use other than single-family residential which has been defaced with graffiti more than five times in twelve months, or the immediate area surrounding said surface, shall be required to be retrofitted, at the expense of the property owner of said lot, 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. In exercising the authority hereunder, the city may not impose a cost on the property owner greater than five hundred dollars.

(2) At city's expense. The owner of property on which is located a surface of a structure other than a single-family residential which has been defaced with graffiti more than five times in twelve months, or the immediate area surrounding said surface, shall permit the city to enter upon and make such modifications thereto, at city's expense, which 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.

(Ord. 2613 § 1 (part); November 10, 1992)

It shall be unlawful for any person to intentionally deface, alter, change, destroy, mutilate, remove, take down or take away any public property or any private property without the consent of the owner of such private property. A mistake as to the private property owner's identity shall not be a defense to a violation of this section.

(Ord. 2613 § 1 (part); November 10, 1992)

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

(Ord. 2613 § 1 (part); November 10, 1992)