Sec. 20.25. - Graffiti; comprehensive regulations.

It is the purpose and intent of the city council of the city, through the adoption of sections 20.25.1 et seq. to provide additional enforcement tools to those provided by Penal Code Sections 594, 594.1, 640.5 and 640.6 to protect public and private property from acts of vandalism and property defacement from the application of graffiti to privately and publicly owned property and to eliminate the public nuisance of graffiti.

(Ord. No. 93-19, § 6, 10-13-93)

[For the purposes of this article, certain terms shall have the meanings ascribed to them in this section, unless the context clearly indicates otherwise:]

Aerosol paint container means any aerosol container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint or other substance capable of defacing property.

Graffiti includes any form of painting, writing, inscription, or carving on any surface, regardless of the content or the nature of the material used in the commission of the act that same was not authorized in advance by the owner of the surface.

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, containing an ink that is not water-soluble.

Graffiti stick means a device containing a solid form of paint, chalk, wax, 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.

Graffiti implement means an aerosol paint container, a felt tip marker, or a graffiti stick.

(Ord. No. 93-19, § 6, 10-13-93)

(a)

Unlawful to apply graffiti. It is unlawful for any person to create a public nuisance by applying graffiti on any public or privately owned structures located on public or privately owned real property within the city.

(b)

Possession by minors. It is unlawful for any person under the age of eighteen (18) years to have in his or her possession any graffiti implement, or paint brushes, pads or rollers and paint or stain, while upon public property or upon private property without the consent of the owner of such private property whose consent is given in advance and whose consent shall be given as to the person's presence while in the possession of a graffiti implement.

(1)

School exception. The foregoing provision shall not apply while the person is attending, or travelling to or from a school at which the person is enrolled, if the person is participating in a class at said school which has, as a written requirement of said class, the need to use felt tip markers, or paint and corresponding paint brushes and rollers.

(c)

Possession in designated public places. No person shall have in his or her possession any graffiti implement, or any paint brushes, pads or rollers and paint or stain, while doing any activity in any public park, playground, swimming pool, recreational facility, or while loitering in or near an underpass, bridge abutment, storm drain, and other similar types of infrastructure not normally used by the public except as may be authorized by the city. This section shall not apply to contractors, employees or agents of the city, to the contractors, employees or agents of any governmental entity, or to the contractors, employees or agents of any public utility.

(Ord. No. 93-19, § 6, 10-13-93)

(a)

Mandatory juvenile delinquent community service. Any minor determined to be a ward of the court under Welfare and Institutions Code Section 602 as a result of committing an offense in the city shall be required,

if determined appropriate by the juvenile court, to perform community service, including graffiti removal service of not less than six (6) hours nor more than eighty (80) hours.

(b)

Civil liability. The person committing the graffiti, and any parent or other legal guardian who consents to, permits, or otherwise allows her or his minor child to possess a graffiti implement shall be personally liable for any and all costs to any person incurred in connection with the removal of graffiti caused by said child, or by said graffiti implement, and for all attorneys' fees and court costs incurred in connection with the civil prosecution of any claim for damages.

(Ord. No. 93-19, § 6, 10-13-93)

(a)

Reward authority.

(1)

Pursuant to Section 53069.5 of the Government Code, the city manager may pay from city funds a reward of one hundred fifty dollars ($150.00) for information leading to the arrest and conviction of any person for violation of section 20.25.2(a) or any penal code provisions prohibiting graffiti, not to exceed three hundred dollars ($300.00) per incident of graffiti. In the event of multiple contributors of information, the reward amount shall be divided by the city in the manner it shall deem appropriate. For the purposes of this section, diversion of the offending violator to a community service program, or a plea bargain to a lesser offense, shall constitute a conviction.

(2)

Claims for rewards under this section shall be filed with the city. Each claim shall:

a.

Specifically identify the date, location and kind of property damaged or destroyed;

b.

Identify by name the person who was convicted, or confessed to the damage or destruction of the city property;

c.

Identify the court and the date upon which the conviction occurred or the place and the date of the confession.

(3)

No claim for a reward shall be allowed by the city manager unless the police chief or his designated representative investigates and verifies the accuracy of the claim and recommends that it be allowed or disqualified.

(4)

The person committing the graffiti, and if an unemancipated minor, then the custodial parent of said minor, shall be liable to reimburse the city for any reward paid pursuant to this section.

(Ord. No. 93-19, § 6, 10-13-93)

(a)

Furnishing to minors prohibited. It is unlawful for any person, other than a parent or legal guardian, school official, or city official, to sell, exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged, given, loaned, or otherwise furnished, any graffiti implement to any person under the age of eighteen (18) years without the consent of the parent or other lawfully designated custodian of the person, which custodial consent shall be given in advance in writing.

(b)

Wrongful display for sale. No person, firm or entity engaged in a commercial enterprise ("seller") shall display for sale, trade or exchange, any graffiti implement except in an area from which the public shall be securely precluded without employee assistance. Two (2) such acceptable methods for displaying a graffiti implement for sale shall be by containment in (1) a completely enclosed cabinet or other storage device which shall be permanently affixed to a building or building structure, and which shall remain securely locked at all times except during access by authorized representatives; or (2) in an enclosed area behind a sales or service counter from which the public is precluded from entry.

(c)

Wrongful storage. No person shall store any graffiti implement except in either (1) a completely enclosed room which shall, at all times except during access or substantial occupancy by the owner or an authorized adult representative of the owner, remain securely locked; or (2) in a completely enclosed cabinet or other storage device which shall be permanently affixed to a building or building structure, and which shall, at all times except during access by the owner or an authorized adult representative of the owner, remain securely locked. For the purposes of this section, an owner or authorized representative of the owner, shall be deemed to have substantial occupancy of a room even during short periods of absence if the room is part of a larger structure which is occupied by the owner.

(d)

Civil responsibility for damages for wrongful display or storage. As an additional remedy, any person who displays or stores a graffiti implement in violation of the provisions of this chapter shall be personally liable for any and all costs incurred by any party in connection with the removal of graffiti, or the repair of any property containing graffiti, caused by any person who unlawfully uses a graffiti implement obtained from a

place that displayed or stored the graffiti implement in violation of this Code, and for all attorneys' fees and court costs incurred in connection with the civil prosecution of any claim for damages, not to exceed one thousand five hundred dollars ($1,500.00).

(Ord. No. 93-19, § 6, 10-13-93)

(a)

Right of city to require removal. It is unlawful for any person who is the owner or who has primary responsibility for control of property or who has primary responsibility for the repair or maintenance of property ("responsible party") to permit property which is defaced with graffiti to remain so defaced for a period of seven (7) days after notice of same, unless (1) said person shall demonstrate by a preponderance of evidence that they do not have the financial or physical ability to remove the defacing graffiti.

(b)

Declaration of nuisance.

(1)

Graffiti as a nuisance. The existence of graffiti within the city limits of the city is a public nuisance, and may be abated according to the provisions and procedures herein contained, by the procedures established in Oceanside City Code Chapter 17 Article 1, or by any other method established by law for the abatement of public nuisances.

(2)

Standards for graffiti removal. Graffiti shall be removed or covered completely in a manner that renders it inconspicuous and aesthetically appropriate. When graffiti is painted out, the color used to paint out the graffiti shall match the original color of the surface, or the surface shall be completely repainted with a new color that is aesthetically compatible with existing colors and architecture.

(3)

Graffiti attracting surface as a nuisance. The existence of any surface of a structure on a parcel of land which has been defaced with graffiti after removal more than five (5) times in twelve (12) months is a public and private nuisance, and may, in addition to any other available remedy, be abated at the expense of the property owner upon order by the city council by minor modifications thereto, or to the immediate area surrounding same, or by retrofitting said surface or surfaces with a graffiti resistant surface, or with such other features or qualities as may be established by the city council as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof.

(c)

Right of city to remove.

(1)

Use of public funds. Whenever the city becomes aware, or is notified and determines that graffiti is so located on public or privately owned property viewable from a public or quasi-public place within the city, the city shall be authorized to use public funds for the removal of same, or for the painting or repairing of same, but shall not authorize or undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located, unless the city manager, or his designee, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the responsible party agrees to pay for the costs of repainting or repairing the more extensive area. This section shall not be construed as creating a mandatory duty of the city.

(2)

Private property graffiti removal by city on a fee for service basis. The city may, at its discretion, enter into agreements with private property owners to remove graffiti on private property for a fee established to recover the cost of said service.

(3)

Right of entry on private property provisions.

a.

Securing owner 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, and a release of the city from liability for private or public property or liability damage.

b.

Failure to obtain owner consent. If a responsible party fails to remove the offending graffiti within the time herein specified, or if the city shall have requested consent to remove or paint over the offending 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 shall commence abatement and cost recovery proceedings for the removal of the graffiti according to the appropriate abatement methods described in section 20.25.6(b)(1).

(4)

Ease of removal provisions.

a.

Condition encroachment permits. All encroachment permits issued by the city shall, among such other things, be conditioned on (1) the permittee shall apply an anti-graffiti material to the encroaching object of a type and nature that is acceptable to the city manager, or his or her designee; (2) the immediate removal by the permittee of any graffiti; (3) the right of the city to remove graffiti or to paint the encroaching object; (4) providing city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of encroaching object containing graffiti.

b.

Condition development or subdivision approvals. In approving tentative or parcel maps, development plans, conditional use permits, variances, or other similar land use entitlements, the city shall consider imposing any or all of the following conditions, or other similar or related conditions:

Use of anti-graffiti material. Developer shall apply an anti-graffiti material of a type and nature that is acceptable to the city manager, or his or her designee, to such of the publicly-viewable surfaces on the improvements to be constructed on the site deemed by the city manager, or his or her designee, to be likely to attract graffiti ("graffiti attracting surfaces");

Right of access to remove graffiti. Developer shall grant, prior to resale of any of the parcels which are within the territory of said map, the right of entry over and access to such parcels, upon forty-eight (48) hours posting of notice, by authorized city employees or agents, to the city for the purpose of removing or "painting over" graffiti from graffiti attracting surfaces previously designated by the director, and the right to remove such graffiti;

Supply city with graffiti-removal material. Developer shall, for a period of two (2) years after the resale of their final lot, provide the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of designated graffiti attracting surfaces;

Owner to immediately remove graffiti. Developer shall, either as part of the conditions, covenants and restrictions, or as separate covenants recorded against individual lots, prior to resale of same, covenant, which covenant shall run with the land and be for the benefit of the city, in a form satisfactory to the city, that the owner of the lots shall immediately remove any graffiti placed thereon.

(Ord. No. 93-19, § 6, 10-13-93; Ord. No. 98-28, § 1, 9-16-98)

(a)

Design of new graffiti-attracting surfaces. Any applicant for development plan approval, conditional use permit, special use permit, unclassified use permit, development agreement, or other form of development or building permit shall, to the extent deemed feasible by the planning commission or the city council on appeal, have designed any building structures visible from any public or quasi-public place in such a manner to consider prevention of graffiti, including, but not limited to the following: (1) use of a protective coating to provide for the effective and expeditious removal of graffiti; (2) use of additional lighting; (3) use of non-solid fencing; (4) use of landscaping designed to cover large wall areas such as ivy or similar clinging vegetation; and (5) use of architectural design to break up long continuous walls or solid areas.

(b)

Retrofit existing graffiti-attracting surfaces; non-residential structures. This may be incorporated in the eradication order during an abatement hearing.

(1)

At-owner's expense. Any surface of a structure on a parcel of land placed in any land use other than residential which has been defaced with graffiti more than five (5) times in twelve (12) months, or the immediate area surrounding said surface, shall be required to be retrofitted, at the cost of the property owner of said lot, with such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof. In exercising the authority hereunder, the city may not impose a cost on the property owner greater than three times the cost of one year's expense to the property owner of graffiti removal.

(2)

At city's cost. The owner of property on which is located a surface of a structure other than residential which has been defaced with graffiti more than five (5) times in twelve (12) months, or the immediate area surrounding said surface, shall permit the city to enter upon and make such modifications thereto, at city's cost, which modifications shall include such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof.

(Ord. No. 93-19, § 6, 10-13-93)

Any parent or other legal guardian who consents to, permits, or otherwise allows her or his minor child to possess a graffiti implement shall be personally liable for any and all costs to any person incurred in connection with the removal of graffiti or other abatement of the public nuisance caused by said child, or by said graffiti implement, and for all attorneys' fees and court costs incurred in connection with the civil prosecution of any claim for damages.

(Ord. No. 93-19, § 6, 10-13-93)

If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The city council declares that it would have adopted each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, clauses, phrases or portions be declared invalid or unconstitutional.

(Ord. No. 93-19, § 6, 10-13-93)

Every person who owns, conducts, operates or manages a retail commercial establishment selling glass etching cream, or any commercially available glass etching product, whether sold separately or in a kit, shall store or cause to be stored such glass etching cream or glass etching product under lock and key in an area viewable by, but not accessible to the public in the regular course of business without employee assistance, pending legal sale or disposition of such glass etching cream or glass etching product.

(Ord. No. 02-OR330-1, § 1, 5-8-02)

No person who owns, conducts, operates or manages a retail commercial establishment selling glass etching cream or any commercially available glass etching product, whether sold separately or in a kit, shall sell or caused to be sold any such glass etching cream or glass etching product to any person who has not yet attained the age of eighteen (18) years.

(Ord. No. 02-OR330-1, § 1, 5-8-02)

Any and all violations of this chapter shall be punishable as an infraction or a misdemeanor, at the discretion of the city attorney or by the penalty provisions contained in section 20.25.3 of this Code.

(Ord. No. 02-OR330-1, § 1, 5-8-02)