Chapter 9.09 — GRAFFITI ABATEMENT

It is the purpose and intent of the city council through the adoption of the ordinance codified in this chapter, to provide additional enforcement tools to protect public and private property from acts of vandalism, defacement, and graffiti on privately and publicly owned real and personal property and/or rolling stock, which are inimical and destructive of the rights and values of public and private property owners as well as the total community. The power of graffiti to create fear within the community and blight upon the landscape, devaluing property and detracting from the sense of community enjoyed by the residents of the city is beyond the cost and cleanup or removal. Not only is graffiti a property crime, but also a social crime on the quality of life and freedom from intimidation citizens deserve within their neighborhood.

(Ord. No. 336, § I, 11-24-2009; Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

As used in this chapter, the following terms shall have the meanings set forth herein:

"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.

"Felt tip marker" means any marker or similar implement with a tip which, at its broadest width, is greater than one-sixteenth inch, containing an ink or other pigmented liquid.

"Graffiti" means any unauthorized inscription, word, figure or design that is marked, etched, scratched, drawn or painted on any surface, regardless of the nature of the material of that structural component.

"Graffiti implement" means an aerosol paint container, a felt tip marker, gum label or a paint stick or etching tool capable of scarring glass, metal, concrete or wood.

"Gum label" means any sheet of paper, fabric, plastic or other substance with an adhesive backing which, when placed on the surface is not easily removable.

"Paint stick or graffiti stick" means a device containing a solid form or 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-sixteenth of an inch in width.

(Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

It is unlawful for any person to apply graffiti on any public or privately owned real or personal property and/or rolling stock located on public or privately owned real or personal property within the city. "Rolling stock" includes cars, vans, recreational vehicles (powered and/or towed), trucks, freight trailers (vans and flats), railroad cars and boats.

No person owning or otherwise in control of any real property within the city shall permit or allow any graffiti to be placed upon or remain on any permanent structure located on such property when the graffiti is visible from the street or other public or private property.

(Ord. No. 336, § I, 11-24-2009)

Editor's note— Ord. No. 336, § I, adopted November 24, 2009, repealed and reenacted section 9.09.030 in its entirety to read as herein set out. Formerly, section 9.09.030 pertained to unlawful to apply, and derived from Ord. No. 276, § 2(part), adopted in 1994, and Ord. No. 281, § 2(part), adopted in 1994.

It is unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement while upon public property, or upon private property, without the prior written consent of the owner of such private property.

The foregoing provisions shall not apply while the person is attending or traveling 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 any graffiti implement.

(Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

No person shall have in his or her possession any graffiti implement while doing any activity in any public park, playground, swimming pool, recreational facility or while loitering in or near any underpass, bridge abatement, storm drain and other similar types of infrastructure not normally used by the public, except as they may be used in planned, adult-supervised activities.

(Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

It is unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan or otherwise furnish, any felt tip marker or graffiti implement to any person under the age of eighteen 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.

(Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

Any parent or legal guardian whose child under the age of eighteen possesses 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 attorney's fees and court costs included in connection with the civil prosecution of any claim for damages.

(Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

Any person violating any provision of this chapter shall be guilty of an infraction.

(Ord. No. 336, § I, 11-24-2009; Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

The city council declares that should any provision, section, paragraph, sentence or work of this chapter be rendered or declared invalid by any final court action in a court of competent jurisdiction, or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences, and words of this chapter shall remain in full force and effect.

(Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

A.

Authorization. A reward in an amount established by resolution of the city council may be authorized, altered and may be paid by the city to any person who provides information leading to the determination of the identity of, the apprehension of, and conviction of any person who willfully or maliciously paints, marks, or defaces any public or private structure located on private or public property within the city.

The exact amount of five hundred dollars to be paid by the city shall be determined by the city council after receipt of a report from the city administrator, indicating that information was received leading to the determination of the identity, apprehension and conviction of a person who willfully or maliciously painted, marked or defaced a structure located on public or private property located within the city, and indicating the final disposition of each matter. No law enforcement officer, municipal officer, official or employee of the city shall be eligible for such reward.

B.

Repayment by Violators. Any person violating the provisions shall pay the city the amount of any reward paid pursuant to this section, and if such person is an unemancipated minor, such minor's parents or guardian are so liable and shall pay the amount of any reward to the city. Failure to pay any amount demanded by the city pursuant to this section within thirty days or written demand therefor shall itself be a violation of the provisions of this section.

(Ord. 281 § 2(part), 1994: Ord. 276 § 2(part), 1994)

Whenever the chief of police determines that graffiti exists on any permanent structure in the city, which is visible from the street or other private property, the chief of police shall cause a notice to be issued to abate such nuisance. The property owner shall have ten days after the date of notice to remove the graffiti, or the property will be subject to abatement by the city.

(Ord. No. 336, § I, 11-24-2009)

The notice to abate graffiti pursuant to section 9.09.120 shall cause a written notice to be served upon the owner(s) of the affected premises, as such owner's name and address appears on the last equalized property tax assessment rolls of the County of Fresno. If there is no known address for the owner, the notice shall be sent in care of the property address. The notice required by this chapter may be served in any one of the following manners:

A.

By personal service on the owner, occupant or person in charge or control of the property;

B.

By registered or certified mail addressed to the owner at the last known address of said owner. If this address is unknown, the notice will be sent to the property address.

The notice shall be substantially in the following form:

NOTICE OF INTENT TO REMOVE GRAFFITI

Date:

NOTICE IS HEREBY GIVEN that you are required by law at your expense to remove or paint over the graffiti located on the property commonly known as ___________, Orange Cove, California, which is visible to public view, within ten (10) days after the date of this notice: or, if you fail to do so, City employees or private contractors employed by the City will enter upon your property and abate the public nuisance by removal or painting over the graffiti. The costs of the abatement by the City employees or its private contractors will be assessed upon your property and such costs will constitute a lien upon the land until paid.

All persons having any objection to, or interest in said matters are hereby notified to submit any objections or comments to the Chief of Police for the City of Orange Cove or his/her designated representative within ten (10) days from the date of this notice. At the conclusion of this ten (10) day period the City may proceed with the abatement of the graffiti inscribed on your property at your expense without further notice.

(Ord. No. 336, § I, 11-24-2009)

Within ten days from the mailing or personal service of the notice, the owner or person occupying or controlling such premises or lot affected may appeal to the city manager. The decision of the city manager thereupon shall be final and conclusive.

(Ord. No. 336, § I, 11-24-2009)

Upon failure of persons to comply with the notice by the designated date, or such continued date thereafter as the city manager or his/her designated representative approves, then the chief of police is authorized and directed to cause the graffiti to be abated by the city forces or private contract, and the city or its private contractor is expressly authorized to enter upon the premises for such purposes. All reasonable efforts to minimize damage from such entry shall be taken by the city.

(Ord. No. 336, § I, 11-24-2009)

Where a structure is owned by a public entity other than the city, the removal of the graffiti may be authorized only after securing the consent of an authorized representative of the public entity having jurisdiction over the structure.

(Ord. No. 336, § I, 11-24-2009)

The finance director shall keep an account of costs (including incidental expenses) of abating such nuisance on each separate parcel of land where the work is done and render a report in writing to the city manager showing the costs of abatement; provided, that before the report is submitted to the city manager, a copy shall be served in accordance with the provisions of section 9.09.120, together with a notice of time and place for a hearing.

A.

The city manager shall designate a hearing officer and set the matter for hearing to determine the correctness and reasonableness of such costs.

B.

The term "incidental expenses" shall include, but not be limited to, the actual expenses and costs of the city in the preparation of notices, specifications and contracts and in inspecting the work, and the costs of printing and mailing required hereunder.

(Ord. No. 336, § I, 11-24-2009)

At the time and place fixed for receiving and considering the report, the hearing officer shall hear and pass upon the report of such costs of abatement, together with any objections or protests. Thereupon, the hearing officer may make such revision, correction or modification in the report as shall be confirmed. The decision of the hearing officer on all protests and objections which may be made shall be final and conclusive.

(Ord. No. 336, § I, 11-24-2009)

The total cost for abating such nuisance, as confirmed by the hearing officer, shall constitute a special assessment against the respective lot or parcel of land to which it relates, and upon recordation in the office of the Fresno County recorder of a notice of lien, as so made and confirmed, shall constitute a lien on the property for the amount of such assessment.

A.

After such confirmation and recordation, a copy shall be filed with the assessor and tax collector of Fresno County, acting for the city, in order that said county officials may add the amounts of the respective assessments to the next regular tax bills levied against the respective lots and parcels of land, and thereafter said amounts shall be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same procedure under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes; or

B.

After such recordation, such lien may be foreclosed by judicial or other sale in the manner and means provided by law.

C.

Such notice of lien for recordation shall be in form substantially as follows:

NOTICE OF LIEN

(Claim of City of Orange Cove)

Pursuant to the authority vested by the provisions of Ordinance No. _______, the Chief of Police of the City of Orange Cove did, on or about the ___ day of _, 200_, cause the painting over or removal of graffiti at the premises hereinafter described in order to abate a public nuisance on said real property; and the Hearing Officer of the City of Orange Cove did on the ___ day of _, 200, assess the cost of such abatement upon the real property hereinafter described, and the same has not been paid nor any part thereof; and that said City of Orange Cove does hereby claim a lien on such costs of abatement in the amount of said assessment (the sum of $); and the same shall be a lien upon said real property until the same has been paid in full and discharged of record.

The real property hereinbefore mentioned, and upon which a lien is claimed, is that certain parcel of land in the City of Orange Cove, County of Fresno, State of California, and particularly described as follows:

  (Description)

DATED: This ___ day of ____, 200.

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City Clerk of

The City of Orange Cove, California

(Ord. No. 336, § I, 11-24-2009)

Any owner, lessee, occupant or other interested person having any objections or feeling aggrieved at any proceeding taken by the city manager and or hearing officer in ordering the abatement of any public nuisance under the provisions of this chapter, must bring an action to contest such decision within thirty days after the date of such decision by the hearing officer. Otherwise, all objections to such decision shall be deemed waived.

(Ord. No. 336, § I, 11-24-2009)