Merced Municipal Code Ch. 8.36 Graffiti

A. The city council of the city of Merced hereby finds and declares that graffiti on public and private property creates a condition tending to reduce the value of such property, promotes blight and deterioration of surrounding property, and invites further vandalism; it also results in loss of pride in affected neighborhoods and loss of business to neighboring commercial enterprises.

B. The city council further finds and determines that graffiti is obnoxious and a public nuisance, and must be eliminated by means of prevention, education and abatement to avoid the detrimental impact of such graffiti on the city and its residents, and to prevent the further spread of graffiti.

(Ord. 2207 § 1 (part), 2005).

For purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

"Felt tip marker" means any indelible marker or similar implement with a tip which, at its broadest width, is greater than one-eighth (⅛) inch, and contains an ink that is not water-soluble.

"Graffiti" means any inscription, work, figure or design that is marked, etched, scratched, drawn, painted, pasted or otherwise affixed to or on any surface, to the extent that same was unauthorized by the owner or party otherwise in control, or despite authorization, is otherwise deemed by the city to be a public nuisance.

"Graffiti implement" means a pressurized or nonpressurized container, a felt tip marker, a foam tipped container, or a paint stick.

"Minor" means a person under eighteen (18) years of age.

"Paint stick" means a device containing a solid form of paint, chalk, epoxy, or other similar substance capable of being applied to a surface by pressure, and upon application, leaving a mark at least one-eighth (⅛) of an inch in width, visible from a distance of twenty (20) feet, and not water-soluble.

"Pressurized container" means any can, bottle, spray device or other mechanism designed to propel liquid which contains ink, paint, dye or other substance which is expelled under pressure, either through the use of aerosol devices, pumps or similar propulsion devices.

"Property owner" means any person who is the owner of property, or who has primary responsibility for control over property, or who has primary responsibility for the repair and maintenance of property.

(Ord. 2207 § 1 (part), 2005).

It is unlawful for any person, firm, or corporation doing business within the city of Merced to store, stock, keep or display for sale or transfer aerosol spray paint containers, felt tip markers that are not water-soluble and paint sticks 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. Violation of this section is a misdemeanor and shall be punished as set forth in Chapter 1.12 of this code.

(Ord. 2207 § 1 (part), 2005).

A. It is unlawful for any minor to possess any graffiti implement:

1. While upon public property; or

2. While upon private property without the consent of the owner of such private property. Such consent must be given in advance and must authorize the minor's presence while in the possession of a graffiti implement.

This subsection shall not apply 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 which has, as a requirement of the class, the need to use felt tip markers.

B. This section is not intended to conflict with California Penal Code Section 594.1.

C. Violation of this section is a misdemeanor and shall be punished as set forth in Chapter 1.12 of this code.

(Ord. 2207 § 1 (part), 2005)

It is unlawful for any person, firm, or corporation except a parent or legal guardian, to sell, give away or in any way, furnish to a minor any graffiti implement. Violation of this section is a misdemeanor and shall be punished as set forth in Chapter 1.12 of this code.

(Ord. 2207 § 1 (part), 2005)

A. Prohibition. It is unlawful for any person to place graffiti upon any property of any kind within the city of Merced.

B. Assisting in or Encouraging Violations. It is unlawful for any person to assist, aid, abet, allow, permit, or encourage another to violate the provisions of this chapter, by words, overt act, failure to act, or by lack of supervision and control.

C. Property Owner's Duty to Abate Graffiti.

1. It is unlawful for any property owner within the city to permit graffiti to remain upon his or her real or personal property for a period exceeding five (5) days.

2. Violation of subsection (C)(1) of this section is a misdemeanor and shall be punished as set forth in Chapter 1.12 of this code.

3. Each day a property owner fails to remove graffiti after the time limit for such removal has expired, constitutes a separate violation of this chapter.

(Ord. 2207 § 1 (part), 2005)

A. Authorization to Use City Funds. Within the limits set forth in this section, city funds may be used to remove graffiti and other similarly inscribed material that is within the public view from publicly or privately owned structures located on publicly or privately owned real property within the city.

B. The written consent of the owner of the affected structures, public or private, shall be obtained, except as specified below. The consent shall be in a form approved by the city attorney and shall:

1. Authorize entry of city employees and contractors on the affected property to accomplish the removal of the material;

2. Assign to the city any cause or causes of action which the owner may have, against any person or persons who defaced the property with graffiti; and

3. Hold the city, its officers, agents, employees, volunteers, and contractors harmless from all liability arising out of the entry on the property or the work of removing the material.

C. City funds shall be used only to remove the inscribed material itself and may not be used for painting or repairing any more extensive area than is necessary to abate the graffiti. When the abatement method involves painting over reasonable efforts to approximately match surface, color may be used.

D. Right of Entry on Private Property—Failure to Obtain Owner Consent. If a responsible party fails to remove graffiti within the time herein specified, or if the city shall have requested consent to remove or paint over 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 may commence abatement proceedings for the removal of the graffiti pursuant to the nuisance abatement authority granted by California Government Code Sections 38773, et seq., and Chapter 8.08 of this code.

E. Noninterference by Owner or Occupant. No owner or occupant of the property shall obstruct any abatement activity by any authorized person after abatement activities have commenced.

F. The city may contract with a person or entity, public or private, for performing abatement services.

(Ord. 2207 § 1 (part), 2005)

Abatement of graffiti nuisance and recovery of expense of abatement proceedings commenced against a property owner shall be according to the following procedure:

A. If a hearing is requested by the property owner, the city manager, or his or her designee (hearing officer) shall give the property owner not less than forty-eight (48) hours' notice of a hearing to be held by the hearing officer for the purpose of showing cause why the public nuisance should not be abated by the city. Following notice, the hearing shall be held by the hearing officer at the time, date, and place designated and at such hearing the property owner may be heard and provided with the opportunity to show cause why the nuisance should not be abated. Following the hearing, the hearing officer shall determine whether abatement of the nuisance shall be commenced.

B. If the hearing officer determines that abatement of the nuisance shall be commenced, the city may enter the property and cause such nuisance to be removed in the manner determined most appropriate by the city.

C. If a hearing has not been requested by the property owner, the city may enter upon the property and cause such nuisance to be removed in the manner determined most appropriate by the city.

D. Upon removal of the public nuisance, the city may provide an accounting of the expense of abatement along with a demand for payment to the property owner.

E. If payment or payment arrangements with the city finance department are not made within thirty (30) days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of one hundred fifty dollars ($150.00) plus interest on the unpaid amount plus penalty, which interest shall accrue at the rate of one and one-half (1 ½) percent per month until paid.

F. In the event the expense of abatement has not been paid within thirty (30) days from the date of issuing an accounting and demand for payment, and payment arrangements have not been made with the city finance department, as required in subsection E of this section, the amount unpaid including any penalty and interest therein, shall constitute a lien pursuant to Government Code Sections 38773, 38773.1, and their successors, against the property of the property owner. Prior to recording a notice of lien, the hearing officer shall provide notice pursuant to Government Code Section 38773.1. Any such lien not paid by June 30th of each year shall, upon adoption of a resolution by the city council, be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

G. Alternatively, pursuant to Government Code Section 38773.5, the expense of abatement may constitute a special assessment against a parcel of land owned by the property owner. The assessment shall be collected as provided for in Government Code Section 38773.5 and its successors.

H. In addition to any other remedy provided herein or available at law, expense of abatement pursuant to Government Code Sections 38773, 3873.1 and 38773.5 shall constitute a personal obligation against the property owner.

(Ord. 2207 § 1 (part), 2005)

A. The recovery of expense of abatement of any nuisance resulting from the defacement of property by graffiti or any other inscribed material by a minor or other person who has created, caused, assisted in creating or causing the nuisance shall be according to the following procedure:

1. The city manager, or his or her designee, (hearing officer), shall give the minor and the parent or guardian having custody and control of the minor, or other person, not less than ten (10) days' notice of a hearing to be held by the hearing officer for the purpose of showing cause why the city should not recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor, or other person. Following notice, the hearing shall be held by the hearing officer at the time, date, and place designated and at such hearing, the minor and the parent or guardian having custody and control of the minor, may each be heard and provided with the opportunity to show cause why the city should not recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor. Following the hearing, the hearing officer shall determine whether the city should recover expense of abatement from the minor and the parent or guardian having custody and control of the minor, or other person.

2. If the hearing officer determines that the city should recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor, or other person, the city shall provide an accounting of the expense of abatement along with a demand for payment to the minor and the parent or guardian having custody and control of the minor, or other person.

3. The parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor for the expense of abatement pursuant to Government Code Sections 38772, 38773.2, 38773.6, and their successors. If payment or payment arrangements with the city finance department are not made within thirty (30) days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of one hundred fifty dollars ($150.00) plus interest on the unpaid amount plus penalty, which interest shall accrue at the rate of one and one-half (1 ½) percent per month until paid.

4. The parent or guardian having custody and control of the minor shall be jointly and severally liable for any damages caused by the misconduct of the minor, including, but not limited to, the costs expended to remove or otherwise abate such graffiti damage. The city attorney shall have the authority to recover such abatement costs pursuant to California Civil Code Section 1714.1(b). The finance officer or designee shall have authority to recover such abatement costs falling within the jurisdictional limitations of small claims court.

5. In the event the expense of abatement has not been paid within thirty (30) days from the date of issuing an accounting and demand for payment, and payment arrangements with the city finance department have not been made, as required in subsection (A)(3) of this section, the amount paid, including any penalty and interest therein, shall constitute a lien pursuant to Government Code Sections 38772 and 38773.2 against the property of the minor, or other person and against the property of the parent or guardian having custody and control of the minor. Prior to recording a notice of lien, the hearing officer shall provide notice pursuant to Government Code Section 38773.2. Any such lien not paid by June 30th of each year shall, upon adoption of a resolution by the city council, be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

6. Alternatively, pursuant to Government Code Section 38773.6, the expense of abatement shall constitute a special assessment against a parcel of land owned by the minor, or other person, or by the parent or guardian having custody and control of the minor. The assessment shall be collected as provided for in Government Code Section 38773.6 and its successors.

7. In addition to any other remedy provided herein or available at law, the expense of abatement pursuant to Government Code Section 38772 shall constitute a personal obligation against the minor and a personal obligation against the parent or guardian having custody and control of the minor.

(Ord. 2207 § 1 (part), 2005)

A. Pursuant to Government Code Section 38773.7, upon entry of a second or subsequent civil or criminal judgment within a two- (2) year period finding that a property owner, minor, or other person is responsible for a condition that may be abated in accordance with Section 8.36.080(G) or 8.36.090(A)(6) of this chapter, the city attorney is authorized to seek a court order for treble the costs of the abatement.

B. Pursuant to Government Code Section 38772(d)(3), a minor or other person means a minor or other person who has confessed to, admitted to, or pled guilty or nolo contendere to a violation of Sections 594, 594.3, 640.5, 640.6 or 640.7 of the Penal Code, or a minor convicted by final judgment of a violation of Sections 594, 594.3, 640.5, 640.6 or 640.7 of the Penal Code, or 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 Sections 594, 594.3, 640.5, 640.6 or 640.7 of the Penal Code.

(Ord. 2207 § 1 (part), 2005)

Pursuant to the authority contained in Section 626 of the Welfare and Institutions Code and 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 Section 602 (including, but not limited to, offenses which in the opinion of the police chief would constitute a violation of this chapter), the police chief or his designated representative is authorized to require the minor to perform such community service as the police chief deems appropriate. The community service shall not exceed one hundred (100) hours, and shall be performed under the supervision of the community service provider approved by the police chief. The police chief may also require that at least one of the custodial parents, or if none, guardians, be in attendance at least fifty (50) percent of the period of assigned community service.

(Ord. 2207 § 1 (part), 2005)

A. Conditions on Encroachment Permits. Additional conditions that may be imposed on encroachment permits issued by the city include: (1) the permit applicant or holder applying an anti-graffiti material to the encroaching object or structure of a type and nature acceptable to the city manager, or his or her designee; (2) the immediate removal by the permit applicant or holder of any graffiti; (3) the right of the city to remove graffiti or to paint the encroaching object or structure; (4) the permit applicant or holder providing the city with sufficient matching paint and/or anti-graffiti material on demand for use in abating a graffiti nuisance on the encroaching object or structure.

B. Conditions on Discretionary Approvals. In imposing conditions upon conditional use permits, variances, building permits or other similar land use entitlements or development or design applications, the city may impose graffiti removal requirements or any or all of the following conditions, or other similar or related conditions upon the permit applicant or holder to do the following:

1. Use of Anti-Graffiti Material. Apply an anti-graffiti material and provide a landscape design acceptable to the city manager, or his or her designee, to surfaces constructed on the site that are determined by the city manager, or designee, to be likely to attract graffiti ("graffiti-attracting surfaces," hereinafter referred to in this section);

2. Right of Access to Remove Graffiti. Grant, in writing, the right of entry and access to such property, upon forty-eight (48) hours posted notice, by authorized city employees or agents, for the purpose of abating graffiti on such property. Such grant shall be made an express condition of approval and shall be deemed to run with the land.

3. Supply City with Graffiti-Removal Material. Applicant, and any and all successors in interest, shall, for a specified period of years after approval, provide the city with sufficient matching paint and/or anti-graffiti material on demand for use in abating graffiti nuisances on designated graffiti-attracting surfaces.

4. Owner to Immediately Remove Graffiti. Applicants for subdivision maps shall include, in a form satisfactory to the city, a covenant running with the land that all current and future property owners shall immediately remove any graffiti placed on publicly viewable surfaces to the city's satisfaction.

(Ord. 2207 § 1 (part), 2005)

The remedies provided in this chapter are in addition to other remedies and penalties available under this code and laws of the state of California.

(Ord. 2207 § 1 (part), 2005)