Article VI — State Graffiti Laws

California Government Code Sections 38772, 38773.2, 38773.6, and 38773.7 are hereby adopted as an additional remedy addressing graffiti. These sections can only be used for the circumstances and using the definitions set forth therein and as stated herein.

(Ord. No. 13146, § 1, 1-22-2013)

A.

This section O.M.C. 8.10.510 provides for the summary abatement of any nuisance resulting from the defacement of the property of another by graffiti or any other inscribed material at the expense of the minor

or other person creating, causing, or committing the nuisance and by ordinance may make the expense of abatement of the nuisance a lien against property of the minor or other person and a personal obligation against the minor or other person pursuant to sections O.M.C. 8.10.520 or 530 (California Government Code Sections 38773.2 or 38773.6).

B.

The parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor. The expense of abatement of any nuisance, resulting from the defacement by a minor of the property of another by graffiti or any other inscribed material, a lien against the property of a parent or guardian, having custody and control of the minor, and a personal obligation against the parent or guardian having custody and control of the minor pursuant to O.M.C. 8.10.520 or 530 (California Government Code Section 38773.2 or 38773.6).

C.

Notwithstanding any other provision of law, the names and addresses of the parent or guardian having custody and control of the minor, if known, shall be reported by the probation officer of the county to the City Administrator.

D.

As used in this section O.M.C. 8.10.500, et seq., the following terms have the following meanings:

"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, and the law enforcement costs incurred by the City in identifying and apprehending the minor or other person.

"Graffiti or other inscribed material" means any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on any real or personal property.

"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 California 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 California Penal Code, or a minor declared a ward of the Juvenile Court pursuant to Section 602 of the California 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. No. 13146, § 1, 1-22-2013)

A.

If a property owner or other person in possession of a property or the City summarily abates a nuisance resulting from the defacement by a minor or other person of the property of another by graffiti or any other inscribed material by graffiti, the costs of abatement and related administrative costs incurred in the summary abatement of any nuisance may be recovered as set forth in this section.

B.

The City may record a lien on the property of the minor or other person or the property of the minor's parent or guardian having custody and control of the minor committing the graffiti nuisance for the abatement and administrative costs incurred in summarily abating graffiti nuisance. The City shall provide notice to the minor or other person prior to the recordation of a lien on the parcel of land owned by the minor or other person. In addition to notice to the minor, the City shall provide notice to the parent or guardian having custody and control of the minor prior to the recordation of a lien on the parcel of land owned by the parent or guardian having custody and control of the minor.

C.

The notice shall be served in the same manner as a summons in a civil action pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the California Code of Civil Procedure. If the minor or other person, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the minor or other person, in a conspicuous place, for a period of 10 days. The notice shall also be published pursuant to California Government Code Section 6062 in a newspaper of general circulation that is published in the county in which the property is located. If the parent or guardian having custody and control of the minor, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the parent or guardian having custody and control of the minor, in a conspicuous place, for a period of 10 days. The notice shall also be published pursuant to California Government Code Section 6062 in a newspaper of general circulation that is published in the county in which the property is located.

D.

A graffiti nuisance abatement lien shall be recorded in the county recorder's office in the county in which the parcel of land is located. From the date of recording, the lien shall have the force, effect, and priority of a judgment lien.

E.

A graffiti nuisance abatement lien authorized by California Government Code Section 38773.2 shall specify the amount of the lien; shall name the City of Oakland; the date of the abatement order; the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed; and the name and address of the recorded owner of the parcel.

F.

If the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection 5 above 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.

G.

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

H.

If the County Recorder imposes a fee on the City to reimburse the costs of processing and recording the lien and providing notice to the property owner, the City may recover from the property owner such any costs incurred as part of its foreclosure action to enforce the lien.

I.

This section O.M.C. 8.10.520 "abatement and related administrative costs" include, but are 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, and the law enforcement costs incurred by the City in identifying and apprehending the minor or other person.

J.

The terms "graffiti or other inscribed material," "minor," and "other person" have the same meaning as specified in O.M.C. 8.10.510 (California Government Code Section 38772).

(Ord. No. 13146, § 1, 1-22-2013)

A.

As an alternative to the procedure specified O.M.C. 8.10.520 (California Government Code Section 38773.2), the City, at the City Administrator's discretion may make costs of abatement of a nuisance resulting from the defacement by a minor or other person of property of another by graffiti or other inscribed material and 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 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 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 relate 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 attaches 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.

B.

The terms "abatement and related administrative costs," "graffiti or other inscribed material," "minor," and "other person" have the same meaning as specified in O.M.C. 8.10.510 and 520 (California Government Code Sections 38772 and 38773.2).

(Ord. No. 13146, § 1, 1-22-2013)

Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property or a person described in O.M.C. 8.10.510 D.3 (minor or other person) (California Government Code Section 38772, paragraph (3) of subdivision (d)) is responsible for a condition that may be abated in accordance with O.M.C. 8.10.530 (California Government Code Section 38773.6), except for conditions abated pursuant to California Health and Safety Code Section 17980 the court may order that person to pay treble the costs of the abatement.

(Ord. No. 13146, § 1, 1-22-2013)