La Puente Municipal Code Ch. 3.44 Graffiti

Sections:

• 3.44.010 Intent.

• 3.44.020 Findings.

• 3.44.030 Definitions.

• 3.44.040 Removal of graffiti.

• 3.44.050 Storage or display of graffiti implements.

• 3.44.051 Posting requirements.

• 3.44.052 Defacement of private property.

• 3.44.053 Possession of graffiti implements.

• 3.44.054 Furnishing certain graffiti implements to minors.

• 3.44.055 Adult/parental responsibility—civil liability—criminal liability.

• 3.44.060 Possession—Prohibition of spray paint in public parks and buildings.

• 3.44.070 Rewards.

• 3.44.080 Recovery of law enforcement costs.

• 3.44.090 Nuisance abatement.

• 3.44.100 Additional remedies.

• 3.44.110 Violation—penalty.

*Prior ordinance history: Ords. 416, 619, 685U and 688.

It is the intent of the provisions of this chapter to provide an immediate and practical method, to be cumulative with and in addition to any other remedy available at law, whereby graffiti or other inscribed material may be removed from permanent structures located on public or privately owned real property in order to reduce blight and deterioration within the city.

(Ord. 790 § 19 (part), 1999)

Graffiti constitutes an obnoxious public nuisance. The city council finds that graffiti or other inscribed materials placed upon any permanent structure visible from any publicly owned property, is found to be obnoxious and constitutes a public nuisance. As such, the city may abate graffiti as a nuisance and recover its costs in abating the nuisance pursuant to Chapter 3.20 of this code. Such costs include courts costs, attorneys’ fees, costs of removal of the graffiti, costs of repair and replacement of defaced property, costs of administering and monitoring the participation of the defendant and his or her parents or guardians in a graffiti abatement program, and the law enforcement costs incurred by the city in identifying and apprehending the person who created, caused or committed the graffiti or other inscribed material on the publicly or privately owned real or personal property within the city.

(Ord. 790 § 19 (part), 1999)

For the purposes of this chapter, unless it is plainly evident from the context that a different meaning is intended, the following definitions shall apply:

“Aerosol paint container” means any aerosol container which is adapted or made for the purpose of spraying paint or other substance capable of defacing property.

"Etching cream" means any caustic cream, gel, liquid, or solution capable, by means of a chemical action, of defacing, damaging, or destroying hard surfaces in a manner similar to acid.

"Etching tool" means an instrument, tool or device designed or commonly used for marking, cutting, etching or defacing glass, and includes devices designed for marking surfaces and capable of marking glass.

“Expense of abatement” includes, but is not limited to, court costs, attorneys’ 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, Los Angeles County, or the city and county in identifying and apprehending the person who placed the graffiti on real or personal property.

"Felt tip marker" means any indelible marker or similar implement with a tip which, at its broadest width is greater than one-eighth inch containing ink that is not water soluble.

“Graffiti” means any inscription, word, figure, mark or design which is written, marked, etched, scratched, scribed, drawn, painted, posted or otherwise affixed to or on real or personal property.

"Graffiti implement" means any aerosol container, etching cream, felt tip marker, paint stick, etching instrument, stickers, decals, stencils, or any other device containing paint, ink, chalk, dye or similar substance which when used or applied is capable of defacing glass, metal, concrete or wood.

"Graffiti stick" means a device containing a solid form or paint, chalk, wax, epoxy, or other similar substance capable of being applied to a surface by pressure, and upon application, leaving a mark of at least one-eighth of an inch in width and not water soluble.

“Responsible party” means an owner of property located within the city, a person with primary responsibility for control of property within the city or a person with primary responsibility for the repair or maintenance of property within the city.

(Ord. 06-855 § 1, 2006; Ord. 790 § 19 (part), 1999)

(a) Right of City to Require Removal. It is unlawful for any responsible party to permit the property which is defaced with graffiti to remain so defaced for a period of seven calendar days after service by city by first class mail of notice of same. This prohibition does not apply if:

(1) The responsible party demonstrates by a preponderance of evidence that he or she does not have the financial ability to remove the defacing graffiti; or

(2) The responsible party demonstrates that he or she 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 calendar days after service by first class mail of notice of same.

(b) 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 as to be viewable from a public or quasi-public place within the city, the city is authorized to use public funds for the removal, repair or replacement of the same. The city will not authorize or undertake to remove, repair or replace any more extensive area than that where the graffiti is located, unless the city determines 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 private property, or property owned by another public entity, for the purposes of graffiti removal, 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. The city may commence abatement and cost recovery proceedings for the removal of the graffiti pursuant to the provisions of Chapter 3.20 of this code.

(c) Method of Removal.

(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, will paint their above-surface metal fixtures installed after the effective date of this chapter, with a uniform paint type and color.

(2) Conditions on Encroachment Permits. Encroachment permits issued by the city may, among other things, be conditioned on any of the following: (i) the permittee applying an anti-graffiti material to the encroaching object or structure of a type and nature that is acceptable to the city; (ii) the immediate removal by the permittee of any graffiti; (iii) the right of the city to remove graffiti or to paint the encroaching object or structure; (iv) 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 unclassified use permits, variances, building permits, design or development applications or other similar land use entitlements, the city may impose graffiti removal requirements or any or all of the following conditions:

(A) Use of Anti-Graffiti Material. The applicant must apply an anti-graffiti material to publicly viewable surfaces which will be constructed on the site and which the city deems are likely to attract graffiti (referred to hereafter as “graffiti attracting surfaces”). Such material must be approved by the city in advance.

(B) Right of Access to Remove Graffiti. The applicant must grant to the city, in writing, the right of entry over and access to such parcels for the purpose of removing or “painting over” graffiti on graffiti attracting surfaces previously designated by the city. Such entry will only be allowed upon forty-eight hours posted notice. This grant will be an express condition of approval and will run with the land.

(C) Supply City with Graffiti-Removal Material. For a specified period of years after approval, the applicant, and any and all successors in interest, must provide the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of graffiti on the designated graffiti attracting surfaces.

(D) Owner to Immediately Remove Graffiti. Persons applying for subdivision maps must, as part of the conditions, covenants and restrictions, covenant that the owners of the lots will immediately remove any graffiti placed on publicly viewable trees and structures thereon to the city’s satisfaction. Such covenants will run with the land and must be in a form satisfactory to the city.

(d) Preservation Procedures Adopted Pursuant to California Government Code Section 53069.3(c)(2). Prior to or during removal, the city will follow any procedures adopted by the Los Angeles County sheriff’s department for pre-removal preservation of sufficient evidence of the graffiti for criminal prosecutions or proceedings under Section 602 of the Welfare and Institutions Code.

(Ord. 790 § 19 (part), 1999)

Any person who owns, conducts, operates, manages or carries on any business, company, shop or retail commercial enterprise, including without limitation, any swap meet or garage sale, which sells aerosol spray paint containers or marker pens with tips exceeding four millimeters in width, containing anything other than a solution which can be removed with water after it dries, shall cause such aerosol containers or marker pens to be stored, maintained or displayed in a place or manner which is locked or secured so as not to be accessible to the public except with the assistance of the seller or the seller’s employees.

(Ord. 06-855 § 2, 2006; Ord. 790 § 19 (part), 1999)

It is unlawful for any person, firm or corporation that offers to the public any graffiti implement to fail to post in a conspicuous location, a sign containing the following language in letters at least one-half inch in height:

IT IS UNLAWFUL FOR A MINOR TO BUY OF BE SOLD SPRAY PAINT, PAINT STICKS, ETCHING TOOLS OR MARKERS ONE-EIGHTH OF AN INCH OR WIDER.

(Ord. 06-855 § 3, 2006)

It is unlawful for any person to knowingly write, spray, scratch, or otherwise affix any graffiti on or in any private real or personal property.

(Ord. 06-855 § 4, 2006)

(a) It is unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement, except of the minor’s use under the supervision of the minor’s parent, guardian, instructor, or employer.

(b) It is unlawful for any person to have in his or her possession any graffiti implement while upon any property of the city other than public highways, streets, alleys or ways, except as may be authorized by the city.

(c) It is unlawful for any person to have in his or her possession any graffiti implement while upon any private property, except as may be authorized by the owner.

(Ord. 06-855 § 5, 2006)

It is unlawful for any person, firm or corporation to sell, give, exchange or in any way furnish any felt tip marker, etching tool or graffiti stick to any person under the age of eighteen years.

(Ord. 06-855 § 6, 2006)

(a) It is unlawful for a parent or legal guardian having custody or control of a person under the age of eighteen to knowingly permit, or by insufficient control allow, the minor to possess a graffiti implement.

(b) Pursuant to California Civil Code Section 1714.1(b), any parent or legal guardian having custody or control of a minor who knowingly permits, or by insufficient control allows, the minor to possess a graffiti implement shall be jointly and severally liable with such minor for any and all costs incurred in connection with the removal of any graffiti caused by the minor, including all attorney’s fees and court costs resulting from the civil prosecution of any claim for damages, not to exceed twenty-five thousand dollars. The city, including the Los Angeles County Sheriff’s Department, shall be entitled to seek full cost recovery from the parent or legal guardian of a minor found to be guilty of violating any provisions of this chapter.

(c) Pursuant to California Penal Code Section 594(c)(2)(A), a person convicted for acts of vandalism including defacing property with graffiti may be subject to additional punishment imposed by the court at the request of the Los Angeles Sheriff’s Department to pay for law enforcement costs, in an amount not to exceed two hundred fifty dollars, provided the defendant has the ability to pay all or part of the costs. The Los Angeles County Sheriff’s Department shall provide evidence of, and bear the burden of establishing, the reasonable costs that it incurred in identifying and apprehending the defendant.

The law enforcement costs authorized to be paid pursuant to California Penal Code Section 594(c)(2)(A) are in addition to any other costs incurred or recovered by the Los Angeles County Sheriff’s Department, and payment of these costs does not in any way limit, preclude, or restrict any other right, remedy or action otherwise available to the city and the Los Angeles County Sheriff’s Department.

(Ord. 06-855 § 7, 2006)

Pursuant to California Penal Code Section 594.1(d), it is unlawful for any person to carry on his or her person and in plain view to the public an aerosol container of paint while in any posted facility, park, playground, swimming pool, or recreational area owned, operated or maintained by the city (other than a highway, street or alley). This prohibition against possession does not apply to authorized employees or agents of the city or a person having the authorization of an authorized employee or agent of the city. The community services director, or his or her designee, will post a notice at appropriate locations indicating that, pursuant to California Penal Code Section 594.1(d), no person shall possess any can of spray paint in that city-owned building, park, playground, swimming pool, recreational area or other city facility without the permission of an authorized city officer.

(Ord. 790 § 19 (part), 1999)

Pursuant to California Government Code Section 53069.5, the city may, from time to time, offer a reward in an amount 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, 594.3, 640, 640.5, or 640.6.

(a) In the event of multiple sources of information, the city will divide the reward in the manner it deems appropriate.

(b) For the purposes of this section, diversion of the violator to a community service program, or a plea bargain to a lesser offense, constitutes a conviction.

(c) Claims for rewards under this section must be filed with the city and must:

(1) Specifically identify the date, location and kind of property damaged or destroyed;

(2) Identify by name the person who was convicted;

(3) Identify the court and the date upon which the conviction occurred; and

(4) Be in writing and filed within ninety days of such conviction.

(d) No reward will be granted until the city investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied.

(e) The person committing the graffiti-vandalism, and if an unemancipated minor, then his or her parent or lawful guardian will be civilly liable for any reward paid pursuant to this section.

(Ord. 790 § 19 (part), 1999)

(a) Pursuant to California Penal Code Section 594 (c)(2), the court may order a person convicted of violating California Penal Code Section 594 to pay all or part of the law enforcement costs incurred in identifying and apprehending the defendant. The court will first determine whether the defendant has the ability to pay the costs, not exceeding two hundred fifty dollars. If the defendant does have such ability, the court will order defendant to pay the costs; however, such order shall not exceed two hundred fifty dollars. The law enforcement agency must provide evidence of, and bears the burden of establishing the reasonableness of, such costs.

(b) The law enforcement costs authorized in subsection (a) of this section are in addition to any other costs incurred or recovered by the law enforcement agency, and payment of these costs does not in any way limit, preclude, or restrict any other right, remedy, or action otherwise available to the law enforcement agency.

(Ord. 790 § 19 (part), 1999)

(a) Pursuant to California Government Code Section 38772, a minor who creates, causes or commits a nuisance by defacing the property of another with graffiti is liable for the cost of abatement of the nuisance caused. The city may recover this cost by making the expense of abatement a lien against the property of the minor or the minor’s parent, in accordance with the procedures set forth in this chapter.

(1) For purposes of this section, the following definitions apply:

“Minor” means: (1) a minor 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 California Penal Code; or (2) a minor convicted by final judgment of a violation of Section 594, 594.3, 640.5, 640.6, or 640.7 of the California Penal Code; or (3) 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.

“Parent” means the parent or legal guardian having custody and control of a minor.

(b) Procedures.

(1) To recover the expense of abatement, the city will give notice to the minor prior to the recordation of a lien on the parcel of land owned by the minor and notice to the parent prior to the recordation of a lien on the parcel of land owned by the parent. This notice will 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 California Code of Civil Procedure.

(2) Notice when minor or parent cannot be found.

(A) If 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, in a conspicuous place, for a period of ten days. The notice must 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.

(B) If a minor’s parent, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the parent in a conspicuous place for a period of ten days. The notice must 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.

(3) A graffiti nuisance abatement lien will 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.

(4) A graffiti nuisance abatement lien authorized by this section will 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.

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

(6) If the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection (b)(4) of this section shall be recorded by the city. A graffiti nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.

(7) If the county recorder imposes a fee on the city to reimburse the costs of processing and recording the lien and providing notice to the property owner, the city may recover from the property owner any costs incurred for processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

(c) Alternative procedure for assessment. As an alternative to the lien in subsections (a) and (b) of this section, the city may make the abatement and related administrative costs a special assessment against a parcel of land owned by the minor or by the parent, in accordance with the procedures set forth in Section 3.20.130 of this code. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected and are subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the abatement and related administrative costs relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon prior to the date on which the first installment of the taxes would become delinquent, then the abatement and related administrative costs will not result in a lien against the real property but will instead be transferred to the unsecured roll for collection. Notices or instruments relating to the abatement proceeding or special assessment may be recorded.

(Ord. 790 § 19 (part), 1999)

The remedies set forth in this chapter are not exclusive and may be used in addition to those set forth elsewhere in this code or by law.

(Ord. 790 § 19 (part), 1999)

Violation of any of the provision of this chapter is a misdemeanor. Any person convicted of violating any provision of this chapter who is granted probation, or any minor who is found to be a person described in California Welfare and Institutions Code Section 602 as a result of committing an offense set forth in this chapter shall, in addition to any other penalties prescribed by law, make restitution to the victim and, at the option of the city, perform community service within the city for not less than one hundred twenty- five hours and not more than two hundred fifty hours.

(Ord. 06-855 § 8, 2006; Ord. 790 § 19 (part), 1999)