Newark Municipal Code Ch. 8.26 Abatement of Graffiti

The purpose of this chapter is to provide a systematic program for removal of graffiti on both public and private property and to provide regulations to prevent and control the proliferation of graffiti in the city. Graffiti not only depreciates the value of property which has been the target of such vandalism, but also depreciates the value of adjacent properties. When graffiti is allowed to remain, it tends to attract additional incidents of graffiti and conveys a negative image of the city to both residents and visitors.

(Ord. 317 § 1 (part), 1995)

For the purposes of this chapter, certain words, terms and phrases used in this chapter are defined as set forth in this chapter.

"Building" means any structure including, but not limited to, any house, garage, duplex, apartment, condominium, stock cooperative, mobilehome or other residential buildings or associated accessory structure; and any commercial, industrial or other establishment, warehouse, kiosk or other structures affixed to or upon real property used as a dwelling or for the purpose of conducting a business, storage, or other activity.

"Enforcement officer" means the county health officer, the building official or his/her designee or other official designated by the city manager, who shall enforce and administer all provisions of this chapter, and for this purpose he/she shall have the power of arrest, authority to issue citations, and he/she may enter upon any premises in the city, except the interior of an occupied dwelling without prior authorization or without a warrant, for the purpose of inspection and enforcement.

"Expenses of abatement" mean and include, but are not limited to, court costs, attorney's fees, costs of removal of the graffiti, costs of repair and replacement of defaced property, and the law enforcement costs incurred by the city, county, or city and county in identifying and apprehending the minor.

"Fence" means any structure made of wire, wood, metal, masonry or other material used as a screen or enclosure or for decorative purposes on a field, yard, lot or property.

"Graffiti" means the unauthorized letters, words, symbols, figures, designs and marks placed on buildings, equipment and objects located on private property or in the public right-of-way by using paint or marking with ink, chalk, crayon, dye or other similar substances, or by drawing, painting, cutting, scraping or etching with any tool or instrument.

"Minor" means 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 Penal Code, or a minor convicted by final judgment of a violation of Section 594, 594.3, 640.5, 640.6 or 640.7 of the Penal Code, or 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.

"Owner" means any person, his/her heirs, executors, administrators or assigns, agent, firm, partnership or corporation having or claiming any legal or equitable interest in the property in question as listed on the last available equalized tax assessment roll for Alameda County.

"Property" means all real property, private or publicly owned, and all buildings, structures, vehicles, equipment, whether fixed, or moveable, located on such property.

"Wall" means a vertical structure used as a partition to enclose or divide areas on public or private property and may be load-bearing or nonload-bearing.

(Ord. 317 § 1 (part), 1995)

It is unlawful for any person to apply graffiti on public or privately owned buildings, or vehicles, located on public or privately owned property within the city. It is unlawful for the owner of any such property to maintain, or allow to be maintained, graffiti on such property.

(Ord. 317 § 1 (part), 1995)

Graffiti shall be abated by one of any of the following methods:

A. Any person responsible for causing graffiti shall remove the same within twenty-four hours after being notified by the enforcement officer or by the owner of the property on which the graffiti is located. Failure to remove graffiti as directed shall constitute an additional and separate violation. In cases in which graffiti is caused by a minor, the parent or legal guardian shall be responsible for such removal or the costs thereof.

B. In addition to subsection A of this section, the owner of the property on which graffiti is located also shall be responsible for the abatement of such graffiti. The graffiti shall be abated within seven days of being notified by the enforcement officer.

NOTE: If requested by the owner of the property, the enforcement officer will determine the availability of volunteers to perform the graffiti abatement. The lack of the availability of the volunteers shall not excuse the owner from abating any and all graffiti.

C. In those cases in which the property owner fails to abate the graffiti as provided in this chapter, the city will proceed with abatement in accordance with the procedures set forth under Title 7, Abatement of Nuisance Conditions.

D. The city may cause graffiti to be summarily abated under the authority of Section 53069.3 of the Government Code and in accordance with the provisions of Title 7. The summary abatement shall be limited to the removal of graffiti and not the painting or repair of a more extensive area. Ord. 317 § 1 (part), 1995, would change if amended.

(Ord. 317 § 1 (part), 1995)

(Ord. No. 428, § 1, 2-14-2008)

The city may collect abatement and related administrative costs and expenses of abatement incurred in the summary abatement of any nuisance resulting from the defacement by a minor of the property of another by graffiti in accordance with the following provisions*:

A. Lien Against Property Owned by the Minor or the Property of a Parent or Guardian of a Minor.

1. The city shall cause notice to be served upon the minor or upon the parent or guardian having custody and control of the minor responsible for causing the graffiti. The notice shall be served in the same manner as a summons in a civil action pursuant to Article 3, Chapter 4, Title 5, Part 2, of the Code of Civil Procedures.

2. The notice shall identify the violation including location of the offense, the name of the minor, the total costs incurred by the city, and shall state that these costs, if unpaid by a date specified, will become a lien on the property owned by the minor or the property owned by the parent or guardian having custody and control of the minor.

3. If the minor cannot be found after diligent search, 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.

4. If the parent or guardian having custody and control of the minor cannot be found after diligent search, the notice may be served by posting a copy of the notice upon the property owned by the parent or guardian, in a conspicuous place, for a period of ten days.

5. The notice shall also be published pursuant to Section 6062 of the Government Code in a newspaper of general circulation in Alameda County.

6. The graffiti nuisance abatement lien shall be recorded in the county recorder's office and, from the date of recording the lien shall have the force, effect and priority of a judgement lien. The lien shall specify the amount of the lien; the name of the agency imposing the lien; the date of the notice to abate; the street address, and assessor's parcel number of the parcel on which the lien is imposed; and the name and address of the owner of record of the parcel.

7. The graffiti nuisance abatement lien shall be recorded in the county recorder's office of any county in which a parcel of land owned by the minor or a parcel of land owned by the parent or guardian having custody and control of the minor is located.

8. If the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge containing the following information, "A graffiti nuisance abatement lien authorized by this section shall 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, real description and assessor's parcel number of the parcel on which the lien is imposed; and the name and address of the recorded owners of the parcel," 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.

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

B. Special Assessment Upon Property Owned by the Minor or the Parent or Guardian Having Custody and Control of the Minor. As an alternative to the procedure described in subsection A of this section, the city may collect abatement and related administrative costs and expense of abatement incurred in the summary abatement of any nuisance resulting from the defacement by a minor of the property of another by graffiti as a special assessment in accordance with the following provisions:

1. The cost of the summary abatement of any nuisance resulting from the defacement by a minor of property of another by graffiti or other inscribed material and related administrative costs may be assessed as a special assessment against any parcel of land owned by the minor or by the parent or guardian having custody and control of the minor.

2. The city shall cause notice to be served upon the minor or upon the parent or guardian having custody and control of the minor responsible for causing the graffiti. The notice shall be served in the same manner as a summons in a civil action pursuant to Article 3, Chapter 4, Title 5, Part 2, of the Code of Civil Procedures.

3. The notice shall identify the violation including location of the offense, the name of the minor, the total costs incurred by the city, and shall state that these costs, if unpaid by a date specified, will become a special assessment on the property owned by the minor or the property owned by the parent or guardian having custody and control of the minor.

4. If the minor cannot be found after diligent search, 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.

5. If the parent or guardian having custody and control of the minor cannot be found after diligent search, the notice may be served by posting a copy of the notice upon the property owned by the parent or guardian, in a conspicuous place, for a period of ten days.

6. The notice shall also be published pursuant to Section 6062 of the Government Code in a newspaper of general circulation in Alameda County.

7. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same penalties and the same procedure and sale in a 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 attached thereon prior to the date on which the first installment of the taxes would become delinquent, then the abatement and related administrative costs shall not result in a lien against the real property but shall instead be transferred to the unsecured roll for collection. Notices or instruments relating to the abatement proceeding or special assessment may be recorded.

8. The terms "abatement and related administrative costs," "graffiti or other inscribed material," and "minor" have the same meaning as specified under Section 8.26.020.

C. No Election of Remedies. The remedies provided herein are cumulative and nothing herein shall be construed to prevent the city from using any and all remedies provided by law or equity to obtain reimbursement for its costs, including but not necessarily limited to, the expense of abatement, and related costs, as defined in Government Code Section 38772(d)(1) from the minor, the parent or guardian having custody and control of the minor, or all of them individually, jointly and jointly and severally.

(Ord. 317 § 1 (part), 1995)

* The authority is provided in Chapter 910, California Statutes 1993-94 (Senate Bill No. 302)

A. Definitions. For purposes of this chapter, the following phrases shall have the following meanings:

"Marker pens" means any indelible marker or similar implement with a writing tip exceeding four millimeters in width that contains a solution which cannot be removed with water after it dries.

"Spray paint containers" means any container, regardless of the material from which it is made, that is made for or adapted for the purpose of spraying paint or any other solution capable of defacing property which cannot be removed with water after it dries.

B. Storage and Display of Spray Paint Containers and Marker Pens. It is unlawful for any person who owns, conducts, operates or manages a commercial, retail or wholesale establishment where spray paint containers or marker pens are sold to store or display, or cause to be stored or displayed, such spray paint containers and marker pens in an area that is accessible to the public without employee assistance in the regular course of business pending legal sale or other disposition.

(Ord. 329 § 1, 1996)

In addition to any other enforcement provisions of this chapter, a violation of any section in this chapter shall constitute an infraction and shall be punishable in accordance with the provisions set forth in Chapter 1.16 of this code.

(Ord. 317 § 1 (part), 1995)