Article IV — Municipal Code Liability, Remedies, and Penalties For Applying Graffiti on…

This Article sets out the administrative, civil, and criminal liabilities and penalties available under the Oakland Municipal Code for placing Graffiti on City or other public property and private property, including real and personal property.

(Ord. No. 13146, § 1, 1-22-2013)

Pursuant to O.M.C. Section 1.24.020B, the City Administrator shall have the power to designate, by written order, that particular officers or employees shall have the authority to arrest or cite persons in violation of this Chapter.

(Ord. No. 13146, § 1, 1-22-2013)

A.

The City may assess administration citations or civil penalties pursuant to O.M.C. Chapter 1.08 (Civil Penalties) or O.M.C. Chapter 1.12 (Administrative Citations) against a Graffiti Violator.

B.

In instances where the estimated cost of Graffiti abatement is $100 or less (based on the cost to the party removing the Graffiti), the Graffiti Violator shall be assessed an Administrative Citation in accordance with the following schedule:

Administrative Citations. The City may issue administrative citations pursuant to O.M.C. Chapter 1.12:

a.

Not more than $750 for the first citation issuance;

b.

Not more than $1,000 for the second citation issuance;

c.

Not more than $1,500 for the a third issuance;

d.

All subsequent violations shall be assessed as civil penalties.

Civil Penalties.

a.

In instances where the estimated cost of Graffiti abatement is greater than $100 or the Graffiti Violator has Committed more than three (3) acts of placing Graffiti within a three (3) year period, the further acts shall be considered a major violation and the violator shall be assessed a Civil Penalty, pursuant to O.M.C. Chapter 1.08.

b.

Determining the Amount. In determining the amount of the civil penalty, all relevant circumstances shall be considered, including but not limited to: Costs to the City relating to clean-up of Graffiti caused by the Graffiti Violator, special costs to the City in the form of the payment of any reward in, the degree of offense to the public as determined by the magnitude, form and visual prominence of the Graffiti, the history of previous violations by the Graffiti Violator, the assets, liabilities and net worth of the person, and any corrective action taken by Graffiti Violator.

Each act of Graffiti is subject to an administrative citation or civil penalty as appropriate. Each application of Graffiti on the same property, but at different times is considered a separate act subject to citation. Each act of Graffiti on a separate piece of real or personal property is a separate act subject to citation even if occurring on the same general time and day. Each person who participates in an act of Graffiti is subject to a separate administrative citation or civil penalty.

If a Graffiti Violator fails to remove Graffiti within twenty-four (24) hours after notice by the City or the property owner, such failure to timely remove the Graffiti constitutes a separate violation and is a major violation subject to civil penalties.

In addition to assessing administrative citations or civil penalties, a Graffiti Violator shall also be assessed Costs relating to the Graffiti. Each person who participates in an act of Graffiti is jointly and severally liable with all other persons who participated in that act of Graffiti for the Costs of that act of Graffiti.

(Ord. No. 13146, § 1, 1-22-2013)

A.

Any person or entity, public or private, on whose property Graffiti has been placed, may bring a civil action against a Graffiti Violator. In addition, a duly established Business Improvement District, merchants' association, or business, community, or neighborhood association or organization that removes Graffiti on behalf of its members may bring an action against a Graffiti Violator to recover its costs of removal.

B.

Costs and Damages Recoverable. The following damages may be assessed against a Graffiti violator:

The cost of abatement;

Any cost for loss of use of the property on which the Graffiti has been placed (for example, the loss of use of a vehicle that must be repainted to remove Graffiti);

Costs of investigation, including the cost of any code enforcement or police resources used to investigate each incident, as are set out in the Master Fee Schedule;

Reasonable attorney's fees for bringing the action;

Cost of suit;

Treble damages if the violator has been found to have Committed multiple acts of Graffiti within a three (3) year period.

Punitive damages if appropriate under applicable state law and under state law standards.

C.

Joint and Several Liability. Each person who participates in an act of Graffiti is jointly and severally liable with any other person who participates for all Costs, damages, penalties, and attorneys' fees related to that act of Graffiti.

(Ord. No. 13146, § 1, 1-22-2013)

A.

The City Attorney may bring an action to recover costs incurred by the City through the following methods:

Adult Defendant. The City Attorney may bring and maintain a civil action in the name of the City of Oakland to obtain a money judgment against the defendant for any amount not ordered or collected by a criminal court, including, but not limited to, all Costs, attorney's fees, court costs, and/or other costs in addition to civil penalties incurred in connection with the civil prosecution of any claim for damages or reimbursement.

Minor Offender. The City Attorney may bring and maintain a civil action in the name of the City of Oakland to obtain a money judgment against the minor Graffiti Violator and/or his or her parent(s) or guardian(s) having custody and control of the minor for any amount not ordered or collected by the juvenile court, including, but not limited to, all Costs, attorney's fees, court costs, and/or other costs as defined in addition to civil penalties incurred in connection with the civil prosecution of any claim for damages or reimbursement.

B.

The City Attorney may also seek to recover the City's Costs incurred relative to the Graffiti, or such other costs as the City may have. The City Attorney may do so in any of the following ways:

Bring an action on the City's behalf to recover such costs;

Join an action brought by a private party to recover damages and costs relating to a Graffiti incident;

Permit a private party who is the victim of Graffiti to bring the action on the City's behalf.

In the event the City Attorney brings an action to cover the City's costs of a Graffiti incident, at the City Attorney's sole election, and with the permission of the private party or other public entity victim of a Graffiti incident, the City Attorney may pursue the private party or other public entity victim's claims against the Graffiti Violator for damages and costs.

C.

The City Attorney may also bring actions for injunctive or equitable relief against Graffiti Violators.

(Ord. No. 13146, § 1, 1-22-2013)

Any parent or legal guardian of a Minor Graffiti Violator is personally liable for any and all Costs incurred by the City or any person or business in connection with the removal of Graffiti caused by conduct of said minor, and for all attorney's fees, court costs, and other Costs and any administrative citations or civil penalties incurred in connection with the civil or administrative prosecution of any claim for damages to the maximum extent permitted by California Civil Code section 1714.1 or other applicable laws.

(Ord. No. 13146, § 1, 1-22-2013)

To the extent permitted by law, an owner or operator of a motor vehicle is liable and responsible for injury to property resulting from the vehicle's use in applying Graffiti and for all Costs relating to the Graffiti incident when the vehicle is used with the express or implied permission of the owner or operator, irrespective of whether the owner or operator knew or should have known of the intended use of the vehicle.

(Ord. No. 13146, § 1, 1-22-2013)

Administrative Citation or Civil Penalty.

A.

A Graffiti Violator, or parent or guardian of a Minor Graffiti Violator cited with an administrative citation or civil penalty pursuant to this Chapter may request to participate in a restorative justice program; perform community service or attend parenting classes in lieu of payment of the administrative penalty. Community service and parenting classes must be in a program approved by the City Administrator.

Any Graffiti Violator or parent or guardian of a Minor Graffiti Violator cited with an administrative citation or civil penalty who requests permission to participate in a restorative justice program, perform community service or attend parenting classes in lieu of payment of the administrative penalty, as provided in this Subsection (A), must make the request in writing and file it with the issuing department no later than fifteen (15) calendar days, excluding weekends and holidays, after service of the citation. All requests made pursuant to Subsection (A) must include the address of the responsible person(s) for the purpose of correspondence by the issuing department.

The issuing department shall notify the Graffiti Violator or parent or guardian of a Minor Graffiti Violator by first class mail, postage prepaid, whether the request to participate in restorative justice, perform community service or attend parenting classes has been approved, and if approved, shall identify the program(s) that the responsible person must complete, and the date by which such program shall be completed.

Eligibility for restorative justice, community service, or parenting classes shall be based on factors including:

a.

The number of incidents of Graffiti the Graffiti Violator has engaged in;

b.

Whether the Graffiti Violator has previously participated in community service;

c.

The cost of the Graffiti damage;

d.

The Graffiti Violator's or parents ability to pay penalties;

e.

If the Property Owner victim requests the Graffiti Violator perform community service.

Granting or denying request for restorative justice, community service or parenting classes.

a.

Restorative justice. The decision to grant or deny a restorative justice request shall be in the discretion of the victim property owner or possessor and the Graffiti Violator. If the City has a financial interest in the incident greater than that of the victim, then the City Administrator may also participate in the decision to permit restorative justice.

b.

Community service or parenting classes. The decision to grant or deny a community service or parenting class request shall be in the sole discretion the City Administrator. In granting or denying the request, the City Administrator may take into consideration the wishes of the victim.

c.

In the event the request for participation in restorative justice, perform community service or parenting classes, is denied the administrative citation or civil penalty otherwise payable must be made by the date specified in the notice denying the request.

d.

Even if the Graffiti Violator participates in restorative justice, community service, or his/her parents attend parenting classes, the City may still pursue other recovery of fines or Costs, taking into consideration Graffiti Violator's participation in one of the programs.

Community service may include removing Graffiti from public or private property. The amount of community service shall be in proportion to the amount of administrative citation or civil penalty.

The obligation to pay the administrative citation or civil penalty otherwise required shall be suspended during the time period provided for completion of the approved program as set forth in the written notification approving the request sent by the issuing department under O.M.C. 8.10.370 A2, above.

The Graffiti Violator must provide proof of completion of the approved program by submitting to the issuing department within five (5) calendar days following the date by which the program was to be completed, a certificate of completion issued by the program provider. Failure to present such proof within the required time period shall result in the reinstatement of the administrative penalty otherwise due as stated in the administrative citation without further notification by the issuing department. Payment of the amount due shall be made within seven (7) calendar days of the date by which the program was to be completed as specified in the notice provided under O.M.C. 8.10.370 A2, above.

B.

Restorative Justice Program. The City Administrator shall develop a program for referring Graffiti Violators to a restorative justice program. The restorative justice program shall be one that holds disputants and offenders accountable to recognize harm, repair damages as much as possible, in lieu of civil or criminal penalties. The City Administrator may develop a list of agencies, non-profits, or other entities that have such programs. To the extent a restorative justice program may seek to involve the victim as well as the offender, the City Administrator shall encourage, but not require the victim to participate.

C.

In addition to any other remedy provided by law, if the responsible person fails to comply with the administrative citation or civil penalty, the City may use any other legal remedy available to gain compliance with the administrative citation or civil penalty.

D.

Any notices of violations issued for circumstances in which restorative justice or community service is appropriate shall include clear language regarding the availability of restorative justice or community service.

E.

The fact that a property owner victim may be an absentee owner, or does not to respond to a request or elect to participate in restorative justice or community service for the Graffiti Violator does not preclude the Graffiti Violator from being eligible for such programs.

(Ord. No. 13146, § 1, 1-22-2013)

A.

Graffiti as Misdemeanor. Application of Graffiti on any public or private property is a misdemeanor as a violation of the Oakland Municipal Code and this Chapter, in addition to any state law penal violations and any administrative or civil penalties.

B.

Criminal Prosecution. A person who suffers a conviction for committing an act of Graffiti who is granted probation, or any minor who is found to be a person described in California Welfare and Institutions Code Section 602 as a result of committing an act of Graffiti shall make restitution to the victim, in addition to any other penalties prescribed by law.

Suspension of Driving Privileges. For every conviction of a person for a violation of California Penal Code Sections 594, 594.3, or 594.4 committed while the person was 13 years old or older, the City Attorney may petition the sentencing court to suspend existing driving privileges or delay issuance of driving privileges pursuant to California Vehicle Code Section 13202.6.

Community Service. Upon conviction of any person for defacing property with Graffiti or other inscribed materials, the City Attorney may petition the sentencing court to, in addition to any punishment imposed under California Penal Code Section 594, order the defendant to clean-up, repair, or replace the damaged property himself or herself, or order the defendant, and his or her parents or guardians if the defendant is a minor, to keep the damaged property or another specified property in the community free of Graffiti for up to one year as set forth in California Penal Code Section 594(c).

Administrative Hearing. An administrative order may be sought for violations relating to Graffiti offenses against the responsible person(s) and/or, if the responsible person is a minor, against the person(s) or guardian(s) having custody and control of the minor.

(Ord. No. 13146, § 1, 1-22-2013)