Modesto Municipal Code Art. 4 Defacement of Property

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Editor's note— Ord. No. 3625-C.S., § 1, effective June 25, 2015 amended Art. 4, §§ 4-12.400—4-12.410, in effect repealing and reenacting said article as §§ 4-12.400—4-12.413, as set out herein. Former Art. 4 pertained to similar subject matter and had been amended by Ord. 3514-C.S., § 1, effective June 12, 2009.

The purpose of this legislation is to provide programs for removal of graffiti from public and private property within the City and to establish regulations designed to prevent and control the spread of graffiti in Modesto.

The City Council finds and determines that the increase of graffiti on both public and private buildings, structures, and in other places, creates a condition of blight within the City which can result in the deterioration of property values, business opportunities, and enjoyment of life for persons using adjacent and surrounding properties. The Council further finds and determines that graffiti is inconsistent with the City's property maintenance goals, crime prevention programs, and aesthetic standards, and, unless graffiti is quickly removed from public and private properties, other properties soon become the targets of graffiti.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

As used in this article:

(a) "Graffiti" or "tagging" means any inscription, word, figure, or design that is marked, etched, scratched, drawn, sprayed, painted, pasted or otherwise affixed to, or on, any surface to the extent that same was unauthorized by the owner thereof, or, despite authorization, is otherwise deemed by the City Council to be a public nuisance.

(b) "Property" means real or personal property, whether publicly or privately owned, within the City.

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

(d) "Ink marker" means any broad-tipped marker pen with a tip of one-quarter (¼) inch or greater in width.

(e) "Paint stick" means any device containing a solid form of paint, chalk, wax, epoxy, or other similar substance capable of being applied to a surface and upon application leaving a mark upon property of at least one-quarter (¼) inch or greater in width.

(f) "Graffiti implement" means a pressurized container, ink marker, or a paint stick.

(g) "Responsible party" means any occupant, lessor, lessee, manager, licensee, or other person having control over a structure or parcel of land. A responsible party may be a property owner.

(i) "Property owner" means the record owner of real property as listed in the most current equalized assessment role as maintained by the Stanislaus County Assessor.

(h) "Abatement" means any action the City may take to remove or alleviate a nuisance including, but not limited to, demolition, removal, repair, cleaning, boarding and securing or replacement of property.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

The City Council hereby declares that graffiti is a public nuisance and is subject to punishment and abatement as prescribed in this Code.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

(a) It is unlawful for any person to apply graffiti upon any property within the City.

(b) It is unlawful for any person owning or otherwise being in control of any property within the City to maintain, permit or allow any graffiti to remain upon such property when the graffiti is visible from the street or other public or private property.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

It shall be unlawful for any person to assist, aid, abet or encourage another to violate the provisions of this article by words or overt act.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

Violations of this article may, at the discretion of the City Attorney, be prosecuted either criminally or administratively.

(a) Administrative Citation Penalties. Each penalty imposed for an administrative violation of this article shall be (1) a penalty of two hundred dollars ($200.00) for first violation; (2) a penalty of five hundred dollars ($500.00) for a second violation within one (1) year; (3) a penalty of one thousand dollars ($1,000.00) for each additional violation within one (1) year.

(1) Unpaid penalties relating to administrative citations under this article may be subject to the collection procedures contained in Section 1-6.406 and Section 1-6.701.

(b) Criminal penalties. Any violation of this article shall constitute a misdemeanor and upon, conviction thereof, shall be punishable by a fine of not more than one thousand dollars ($1,000.00), or by imprisonment in the county jail for not more than six (6) months, or by both fine and imprisonment.

(1) Whenever deemed appropriate, the City will petition a sentencing court to impose additional penalties or conditions, including community service and suspension or delay of issuance of a driver's license pursuant to California Vehicle Code Section 13202.6 upon conviction.

(c) Parental Responsibility. If a minor is personally unable to pay any penalty or restitution levied for violating any provision of this article, the parent or legal guardian of the minor shall be liable for payment of the penalty and restitution.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

(a) Right of City to Require Removal by Responsible Party.

(1) It is unlawful for any responsible party to permit property that has been defaced with graffiti to remain so defaced for a period of three (3) calendar days after having been given notice of the violation of this section.

(2) The City shall provide written notice of the graffiti to the responsible party pursuant to Section 1-6.205.

(b) Consent to Enter; Abatement Upon Failure to Obtain Consent.

(1) Securing Responsible Party's 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.

(2) Failure to Obtain Responsible Party's Consent. If a responsible party fails to remove the offending graffiti within the time herein specified or if the responsible party has refused to give consent to the City for entry on terms acceptable to the City consistent with the provisions of this section, the City may commence abatement of graffiti nuisance and recovery of expense of abatement proceedings for the removal of the graffiti according to the procedures herein.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

Private property owners may consent in writing to allow the City to enter onto their property for graffiti removal purposes. The City may assess the costs of abatement and related administrative costs to property owners if the City removes the graffiti.

(a) Consent Forms. Consent forms may be obtained from the City of Modesto's Neighborhood Preservation Unit located at 1010 Tenth Street, Suite 3100 Modesto, California 95353.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

(a) Abatement of graffiti nuisance and recovery of expense of abatement proceedings commenced against a responsible party shall be according to the following procedure:

(1) Request for Hearing. Responsible party may request a hearing with a hearing officer for the purpose of showing cause why the public nuisance should not be abated by the City within three (3) calendar days of receiving notice by the City pursuant to Section 4-12.406.

(i) If a hearing is requested by the responsible party, the City Manager, or his or her designee ("hearing officer"), shall give the responsible party 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 responsible party 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.

(ii) If the hearing officer determines that abatement of the nuisance shall be commenced and the responsible party refuses to abate the graffiti on their own within three (3) calendar days of the hearing, the City may enter upon the property and cause such nuisance to be removed in the manner determined most appropriate by the City.

(2) Abatement by City. If the responsible party does not request a hearing and fails to abate the graffiti within three (3) calendar days of receiving notice, the City may enter upon the property and cause such nuisance to be removed in the manner determined most appropriate by the City.

(3) Demand for Payment for Abatement and Related Expenses. Upon removal of the public nuisance, the City may provide an accounting of the expense of abatement and a demand for payment to the responsible party.

(i) The demand for payment shall state that if payment is not made within twenty-five (25) days of the date of the demand, the payment shall be deemed delinquent and may be become a lien or special assessment against the subject property or a personal obligation against the responsible party.

(4) Recordation of Lien. Delinquent payments shall constitute a lien pursuant to Government Code Sections 38773 and 38773.1 against the responsible party. Prior to recording a notice of lien, the City shall provide notice pursuant to Government Code Section 38773.1 and a confirmation of costs hearing relating to the abatement expenses or costs shall be held. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

(5) Special Assessment. In addition to a lien and pursuant to Government Code Section 38773.5, the expense of abatement may constitute a special assessment against a parcel of land owned by the responsible party. The assessment shall be collected as provided for in Government Code Section 38773.5.

(6) Personal Obligation. In addition to any other remedy provided herein or available at law, expense of abatement pursuant to Government Code Sections 38773, 38773.1 and 38773.5 shall constitute a personal obligation against the responsible party.

(b) Recovery of Abatement Expenses from Minor. 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 who has created, caused, or committed 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 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 City should not recover the expense of abatement from the minor and the parent or guardian having custody and control of the minor. 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.

(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, the City may 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.

(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, and 38773.6. If payment is not made within twenty-five (25) days from the date of the accounting and demand for payment, the payment shall be deemed delinquent.

(4) Recordation of Lien. In the event the expense of abatement has not been paid within twenty-five (25) days from the date of issuing an accounting and demand for payment, the amount unpaid, shall constitute a lien pursuant to Government Code Sections 38772 and 38773.2 against the property of the minor and against the property of the parent or guardian having custody and control of the minor. Prior to recording a notice of lien, the City shall provide notice pursuant to Government Code Section 38773.1 and a confirmation of costs hearing relating to the abatement costs shall be held. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

(5) Special Assessment. In addition to a lien and 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 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.

(6) Personal Obligation. 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. No. 3625-C.S., § 1, effective 6-25-15)

The proliferation of gang-related graffiti presents an imminent danger to the public safety and welfare of the community and constitutes a public nuisance. Law enforcement officials and other experts agree that the immediate removal of gang-related graffiti is necessary to reduce the risk of violent and other criminal activities associated with gangs. The presence of gang-related graffiti that is not immediately abated encourages the creation of additional graffiti, increases the risk of violence or retaliatory actions, and leads to increased abatement costs.

(a) Notwithstanding any other provision of this chapter, the City is hereby authorized to summarily abate gang-related graffiti. The abatement may be undertaken by staff or outside contractors. For purposes of this section, "gang-related graffiti" shall be defined as graffiti that is placed on private or public property by person(s) reasonably believed by the Modesto Police department or the Neighborhood Preservation Unit to be a member of, or affiliated with, a criminal street gang, as that term is defined in subsection (f) of Penal Code Section 186.22.

(b) The costs of summary abatement of gang-related graffiti and related administrative costs and expenses, including attorneys' fees, incurred by the City may be recovered as provided in MMC 4-12.408.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

Every person, firm or entity who owns, conducts, operates, or manages a retail commercial establishment selling graffiti implements within the City shall store, stock, keep or display for sale or transfer graffiti implements in a secure area and not accessible to the public in the regular course of business and accessible only to employees of such retail commercial establishments.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

The City hereby offers a reward of one hundred dollars ($100.00) or such other sum as Council may direct for information leading to the arrest and conviction of any person injuring, defacing, or destroying property by the application of graffiti.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

The procedures set forth in this article are not exclusive and nothing contained herein shall be deemed to preclude the City Attorney from initiation of any civil or criminal action or from the pursuit of any available remedy.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)

(a) In approving subdivision maps, conditional use permits, variances, or other land use entitlements, the city shall consider imposing conditions reasonably related to the control of graffiti and/or the mitigation of the impacts of graffiti. Such conditions may include, without limitation, any or all of the following:

(1) Installation and use of anti-graffiti materials, as approved by the planning director or his/her designee, on surfaces which are likely to be graffiti-attracting surfaces;

(2) Installation and use of landscaping to screen or provide a barrier to surfaces prone to graffiti or likely to be a graffiti-attracting surface;

(3) Installation and use of additional lighting in areas that are likely to be graffiti-attracting surfaces and areas adjacent thereto;

(4) Immediate removal of any graffiti at the property;

(5) Authorizing right of access by city forces to remove graffiti; and

(6) Supplying the city with sufficient matching paint and/or anti-graffiti material on demand for use in the abatement of graffiti by city forces or agents.

(b) The city may require applicants for any subdivision maps, conditional use permits, variances, or other land use entitlements to record against the property any conditions of approval contained in subsection (a) of this section or any other conditions of approval relating to graffiti control or prevention. If required, the applicant shall record those conditions of approval in a form satisfactory to the city with the Stanislaus County recorder's office, and such conditions of approval shall run with the land and bind all future owners of the property and any and all successors in interest of the property.

(Ord. No. 3625-C.S., § 1, effective 6-25-15)