Madera Municipal Code Ch. 3-16 Graffiti

(A) Intent and purpose. The Council of the City of Madera finds and determines as follows.

(1) Graffiti on public or private, real or personal property reduces the value of such property, promoting blight and deterioration of surrounding property, resulting in loss of pride in affected neighborhoods, loss of business to neighboring commercial enterprises, and loss of enjoyment of life for persons using adjacent and surrounding properties.

(2) Graffiti that remains on property for a 48 hour period is a public nuisance and its prolonged presence on property promotes additional graffiti and crime in the area marked with graffiti.

(3) The presence of graffiti is inconsistent with the city’s goals of maintaining property, preventing crime, and preserving aesthetic standards.

(B) Definitions. For the purposes of chapter 3-16:

(1) CITY ADMINISTRATOR. The City Administrator of the City of Madera, or his or her authorized representative.

(2) EXPENSE OF ABATEMENT. Includes, but is not limited to, court costs, attorney’s fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, costs of administering and monitoring the participation of a responsible person and his or her parent(s)/guardian(s) in a graffiti abatement program, and the law enforcement costs incurred by the city in identifying and apprehending the responsible person(s) or otherwise the cause of contributing or aiding and abetting in the placement of graffiti or other inscribed material.

(3) GRAFFITI or INSCRIBED MATERIAL. Includes but is not limited to any form of unauthorized inscription, word(s), figure(s), mark(s), design(s), or other defacement, whether written, marked, etched, scratched, gouged, drawn, painted or otherwise affixed, attached, or placed by means of a sticker or decal on any real or personal, public or private property.

(4) IMPLEMENT. An aerosol paint container, a felt tip marker, a paint stick, an aerosol paint activator tip, a masonry drill bit, a glass drill bit, a carbide drill bit, a glass cutter, a grinding stone, an awl, a chisel, a carbide scribe, or any other substance or implement that can be used to make permanent scratches on any surface.

(5) MINOR. Any person under 18 years of age who has confessed to, admitted to, or pled guilty or nolo contendre to a violation of Cal. Penal Code §§ 594, 594.3, 640.5, 640.6 or 640.7, or a minor convicted by final judgment of a violation of Cal. Penal Code §§ 594, 594.3, 640.5, 640.6, or 640.7, or a minor declared a ward of the Juvenile Court pursuant to Cal. Welfare and Institutions Code § 602 by reason of the commission of an act prohibited by Cal. Penal Code §§ 594, 594.3, 640.5, 640.6, or 640.7.

(6) RESPONSIBLE PERSON. Any person violating this chapter or any person who has confessed to, admitted to or pled nolo contendre to a violation of Cal. Penal Code §§ 594, 594.3, 640.5, 640.6 or 640.7, or a person convicted by final judgment of a violation of Cal. Penal Code §§ 594, 594.3, 640.5 or 640.7, or a minor declared a ward of the Juvenile Court pursuant to Cal. Welfare and Institutions Code § 602 by reason of the commission of an act prohibited by Cal. Penal Code §§ 594, 594.3, 640.5, 640.6 or 640.7.

(7) UNAUTHORIZED. Either without the prior consent of the property owner or in violation of any law or regulation.

(Ord. 891 C.S., passed 11-2-11)

It is unlawful for any person, regardless of age, to paint, etch, scratch, gouge, or otherwise apply graffiti, as defined in §3-16.01, upon public or private, real or personal property of any kind within the city.

(Ord. 891 C.S., passed 11-2-11) Penalty, see § 1-2.01

It shall be unlawful for any person, regardless of age, to aid, abet or encourage another to paint, etch, scratch, gouge, or in any other manner apply graffiti upon public or private, real or personal property of any kind within the city.

(Ord. 891 C.S., passed 11-2-11) Penalty, see § 1-2.01

Any violation of Chapter 3-16 shall be a misdemeanor.

(Ord. 891 C.S., passed 11-2-11)

Whenever a person violates Chapter 3-16 with respect to real property, vehicles, signs, fixtures, or furnishings belonging to the city, or any other public entity as defined in Cal. Gov’t Code § 811.2, or the federal government, it shall be a permissive inference that the person neither owned the property nor had the permission of the owner to deface, damage, or destroy the property.

(Ord. 891 C.S., passed 11-2-11)

If a person under 18 years of age is personally unable to pay an administrative fine for acts prohibited by Chapter 3-16, or any restitution ordered by the court after the minor is declared a ward of the Juvenile Court pursuant to Cal. Welfare and Institutions Code § 602, the parent(s) or guardian in custody or control of said person shall be liable for the payment of the fine. The City Administrator may waive payment of the fine or any part thereof by the parent/guardian upon a finding of good cause.

(Ord. 891 C.S., passed 11-2-11)

The city is authorized to use city funds to remove graffiti or other inscribed material 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 or other inscribed material that cannot be removed cost effectively. Only the graffiti or inscribed material itself shall be removed unless the graffiti or inscribed material cannot be removed cost effectively, then repair or replacement of the portion of the property that was defaced is permissible. 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.

(Ord. 891 C.S., passed 11-2-11)

(A) Each responsible person shall be responsible to the city for the expense of abatement. The city may seek recovery of the expense of abatement by any means authorized by law.

(B) Pursuant to Cal. Gov’t Code § 38772, a minor and the parent(s) or guardian(s) having custody and control of the minor are jointly and severally liable to the city for the expense of abatement. The expense of abatement may become a special assessment or a lien against the property of the minor and/or the property of the parent(s) or guardian(s) having custody and control of the minor. The procedures set forth in § 1-9.11 shall be followed for the imposition of a special assessment or a lien.

(C) Alternatively, the city may seek recovery of damages, including the expense of abatement, pursuant to Cal. Civ. Code § 1714.1(b), jointly and severally against the parent(s) or guardian having custody and control of person under 18 years of age whose act of willful misconduct resulted in the defacement of property of another with paint or similar substance.

(D) Any restitution amount received for the city’s abatement of graffiti may be used to support the city’s graffiti abatement expenses.

(Ord. 891 C.S., passed 11-2-11)

The Police Department may promulgate procedures for the pre-removal preservation of sufficient evidence of the graffiti or other inscribed material for criminal prosecution or proceedings. Said procedures shall be followed by the city prior to or during removal of the graffiti or other inscribed material.

(Ord. 891 C.S., passed 11-2-11)

The presence of graffiti or other defacing words, letters, or drawings on any building or structure, any motor vehicle, boat, trailer, or other property for a 48 hour period is a public nuisance. It is the responsibility of the property owner or occupant to remove graffiti within 48 hours unless consent is given for abatement by the city.

(A) Enforcement. Failure to remove graffiti within 48 hours or to consent to abatement by the city will result in enforcement pursuant to the procedures set forth in Chapter 1-9 of this code.

(B) Appeals. Appeal of any notice and order or administrative citation issued for failure to comply with the provisions of this section shall be made pursuant to the procedures in Chapter 1-9 of this code.

(C) Administrative abatement. The city may proceed with administrative abatement pursuant to this code if the property owner or occupant has failed to timely comply with the final order after any notice and order issued for failure to comply with the provisions of this section has become a final order, either by decision of the hearing officer affirming or modifying the same, or by failure to file an appeal within the time prescribed in § 1-9.09.

(D) Cost recovery. The city may seek recovery of costs associated with abatement of graffiti from the property owner or occupant pursuant to Chapter 1-9 of this code.

(Ord. 891 C.S., passed 11-2-11)

It shall be unlawful for any person, firm, or corporation doing business within the city to store, stock, keep or display for sale or transfer any aerosol spray paint container, or any indelible ink marker pen with a tip exceeding four millimeters in width, in an area other than a place that is locked and secure or is otherwise made unavailable to the public and which is accessible only to employees of such businesses.

(Ord. 891 C.S., passed 11-2-11) Penalty, see § 1-2.01

(A) It is unlawful for any minor to possess a graffiti implement:

(1) While on public property; or

(2) While on private property without the consent of the owner of such property. Such consent must be given in advance and must authorize the person’s presence while in possession of the graffiti implement.

(B) This section shall not apply if possession of the graffiti implement is for a lawful purpose. Lawful purpose includes:

(1) While the minor is attending, or traveling to or from a school at which the person is enrolled, if the person is participating in a class at the school, in which, as a requirement of the class, they need to use the graffiti implement; and

(2) While the person is attending, or traveling to or from a place of employment at which the person is employed, if as a requirement of the employment, the person has the need to use the graffiti implement.

(C) This section is not intended to conflict with Cal. Penal Code §§ 594.1 and 594.2.

(Ord. 891 C.S., passed 11-2-11) Penalty, see § 1-2.01

Police Diversion Program. Community service with minimum hours and parental involvement. In lieu of, or as a part of, requesting prosecution of a petition to declare a minor to be a ward of the court under Cal. Welfare and Institutions Code § 602 (including, but not limited to, offenses which, in the opinion of the Police Chief, constitute a violation of this chapter), the Police Chief or his designated representative shall be authorized to order the minor to perform such community service as the Police Chief deems appropriate, but which community service shall contain the following minimum elements:

(A) The minor shall perform not less than 20 hours nor more than 100 hours of community service.

(B) At least one of the custodial parents, or if none, guardian(s), shall be in attendance at least 50% of the period of assigned community service.

(C) The entire period of community service shall be performed under the supervision of a community service provider approved by the Chief of Police.

(Ord. 891 C.S., passed 11-2-11)

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 to be declared invalid or unconstitutional.

(Ord. 891 C.S., passed 11-2-11)