Laguna Niguel Municipal Code Art. 6 Graffiti Prohibited

It is the purpose and intent of the City Council of the City of Laguna Niguel through the adoption of this article, 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. It is further the intent of the city council, through the adoption of this article to put on notice all of those who callously disregard the property rights of others, that the law enforcement agencies for the city, both police services and the prosecutor's office, will strictly enforce the law and severely prosecute those persons engaging in the defacement of public and private properties.

(Ord. No. 94-70, § 1, 2-15-94)

The city council finds as follows:

(a) The increase of graffiti, on either public or private property, results in blight, decreases property values and deprives surrounding residents and owners of the right to comfortable enjoyment of life and property.

(b) Graffiti is obnoxious, constitutes a public nuisance, and is a threat to public safety which must be abated to prevent its further proliferation.

(c) Graffiti must be removed as quickly as possible to minimize harm to persons and property in the community.

(d) This article is consistent with Government Code § 53069.3, which authorizes the enactment of ordinances to provide for the use of city funds to remove graffiti.

(e) This article is intended to be complimentary to and not in conflict with Penal Code § 594, which provides that any person who maliciously defaces property is guilty of vandalism, and Penal Code § 594.1, which, provides that certain activities involving the possession, sale and use of aerosol paint containers are misdemeanors.

(Ord. No. 94-70, § 1, 2-15-94)

(a) Graffiti. As used in this section, "graffiti" includes 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.

(b) Aerosol paint container. "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. "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 an ink that is not water-soluble.

(d) Graffiti or paint stick. "Graffiti or paint stick" means a device containing a 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-eighth of an inch in width, visible from a distance of 20 feet, and not water-soluble.

(e) Graffiti implement. "Graffiti implement" means an aerosol paint container, an etching tool, a felt tip marker, a graffiti or paint stick, or a gum label.

(f) Gum Label. "Gum label" means any sheet of paper, fabric, plastic, or other substance with an adhesive backing which is not easily removable when placed on a surface.

(Ord. No. 94-70, § 1, 2-15-94)

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

(b) Possession of graffiti implement prohibited. It shall be unlawful for any person, while on public property, or upon private property without the prior consent of the owner of such property, to possess any graffiti implement for the purpose of defacing property.

(Ord. No. 94-70, § 1, 2-15-94)

(a) Furnishing to minors prohibited. It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause or 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.

(b) Wrongful display for sale. 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 from which the public shall be securely precluded without employee assistance. Two such acceptable methods for displaying a graffiti implement for sale shall be by containment in (1) a completely enclosed cabinet or other storage device which shall be permanently affixed to a building or building structure, and which shall, at all times except during access by authorized representatives, remain securely locked; or (2) in an enclosed area behind a sale or service counter from which the public is precluded from entry.

(Ord. No. 94-70, § 1, 2-15-94)

(a) Removal by person who applied graffiti. Any person who applies graffiti within the city shall have the duty to remove the same within 24 hours after notice by the city or the public or private owner of the property involved. The failure of any person to so remove said graffiti shall constitute an additional violation of this article. Where graffiti is applied by anyone under the age of 18 years, the parent, parents or legal guardian shall be responsible for such removal or for the payment therefor.

(b) Removal by property owner. 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 ("responsible party") to permit property which is defaced with graffiti to remain so defaced for a period of three working days after notice of same, unless (1) said person shall demonstrate to the city manager or his designee, by a preponderance of evidence that they do not have the financial or physical ability to remove the defacing graffiti; or (2) unless it can be demonstrated that the responsible party 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 five days after notice of same.

(c) Removal by city.

(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 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 city manager, or his designee, 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 party agrees to pay for the costs of repainting or repairing the more extensive area.

(2) 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 responsible party, and a release of the city from liability for private or public property or liability damage.

(d) Nuisance abatement, lien and cost of recovery.

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

(2) Failure to obtain owner consent. If a responsible party 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 party 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 city manager, or his or her designee ("hearing officer"), shall give not less than 48 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 party or parties who are responsible for the maintenance of a parcel of property containing graffiti ("property"), and, if a different person is the owner of record of the parcel of land or which the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current, then to said owner ("owner") also, of a "due process" hearing at which said responsible party and owner shall be entitled to present evidence and argue that his or her property does not contain graffiti. (If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Section 6062.) 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 party, owner, 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 party and owner 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 city manager, or his designee, shall implement the eradication order, and shall provide an accounting to the responsible party, and as appropriate, the owner, of the costs thereof ("eradication accounting").

c. Cost hearing. If the responsible party or owner 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 party and, as appropriate, the owner, 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 party within 30 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 party is the owner, if all or any portion of the assessed eradication charges remain unpaid after 30 days, pursuant to the authority created by law, including Government Code § 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 director of public works 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 Orange County Recorder's Office.

(Ord. No. 94-70, § 1, 2-15-94)

(a) Pursuant to § 53069.5 of the Government Code, the city does hereby offer a reward of up to $500.00 for information leading to the arrest and conviction of any person for violation of Penal Code § 594 by the use of graffiti, not to exceed $500.00 per incident of graffiti. In the event of multiple contributors of information, the reward amount shall be divided by the city in the manner it shall deem appropriate. The city council shall determine the exact amount of each reward. 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 this section shall be filed with the city. Each claim shall:

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

(2) Identify by name the person who was convicted, or confessed to the damage or destruction of the city property.

(3) Identify the court and the date upon which the conviction occurred or the place and the date of the confession.

(c) No claim for a reward shall be allowed by the city council unless an authorized representative of the city investigates and verifies the accuracy of the claim and recommends that it be allowed.

(Ord. No. 94-70, § 1, 2-15-94)

(a) Parental civil liability (cost). Any parent or other legal guardian who consents to, permits, or otherwise knowingly allows her or his child under the age of 18 to possess a graffiti implement shall be personally liable for any and all costs to any person incurred in connection with the removal of graffiti caused by said child, or by said graffiti implement, and for all attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damages.

(b) Parental liability (removal). Where graffiti is applied by anyone under the age of 18 years, the parent, parents, or legal guardian shall be responsible for such removal or for the payment therefor.

(Ord. No. 94-70, § 1, 2-15-94)

(a) Penalties for violation. Any and all violations of this article shall be punishable as a misdemeanor.

(b) Police diversion program; community service with minimum hours and parental involvement. In lieu of, or as part of, requesting prosecution of a petition to declare a minor to be a ward of the court under Welfare and Institutions Code § 602 (including but not limited to, offenses which, in the opinion of the police chief, constitute a violation of this article), or in lieu of prosecuting a violation of this article as a crime against an adult, the police chief with the approval of (or according to rules and procedures approved by) the city manager, shall be authorized to offer said minor or adult an option to perform such community service as the police chief deems appropriate, but which community service shall, if offered at all, contain the following minimum elements:

(1) The minor shall perform at least 30 hours of community service.

(2) At least one of the custodial parents, or if none, guardians, shall be in attendance at least 50 percent of the period of assigned community service, or an appropriate period as determined by the court.

(3) The entire period of community service shall be performed under the supervision of a community service provider approved by the chief of police.

(4) Reasonable effort shall be made to assign the subject minor or adult to a type of community service that is reasonably expected to have the most rehabilitative effect on the minor or adult. To the extent that the offense giving rise to the offer of community service constitutes a violation of this article, reasonable effort shall be made by the chief of police to assign the minor to community service which constitutes in significant part the removal of graffiti.

(Ord. No. 94-70, § 1, 2-15-94)