Chapter 9.40 — GRAFFITI

• A. Graffiti on public and private property is a blighting factor which not only depreciates the value of the property which has been the target of such malicious vandalism, but also depreciates the value of the adjacent and surrounding properties, and, in doing so, negatively impacts upon the entire community. The city has in the past undertaken to remove graffiti from public and privately owned property but has been unable to mount a successful program for encouraging property owners to undertake to remove graffiti from walls, building, structures and other surfaces. Section 53069.3 of the Government Code authorizes the city under certain conditions to provide for the removal of graffiti.

• B. The city council finds and determines that graffiti is obnoxious and a public nuisance, and, unless promptly removed from public and privately owned properties, tends to remain and to attract more graffiti; other properties are then the target of graffiti, with the results that entire neighborhoods, and, indeed, the community is depreciated in value and becomes a less desirable place to live, shop and visit. The city council therefore determines that it is appropriate that the city develop new procedures to implement the provisions of Section53069.3 of the Government Code and provide for the expedient removal of graffiti from both public and privately owned property under the circumstances set forth hereinafter. The city council further determines that it is appropriate to provide regulations relating to the display for sale of aerosol paint containers and marking pens and to provide penalties relating to possession of graffiti implements for the purpose of engaging in graffiti vandalism.

• C. Government Code Sections 38772, 38773.2, and 38773.6 authorize cities to adopt ordinances making the expense of abating graffiti caused by certain minors (1) a personal obligation of the minor and of the parents or guardians having custody and control of the minor, and (2) a lien or special assessment against property of the minor and property of the parents or guardians having custody and control of the minor. Welfare and Institutions Code Section 742.14 authorizes cities to adopt ordinances electing to have the probation officer of the county recoup for it, through juvenile court proceedings in accordance with Section 742.16, its costs associated with graffiti damage caused by certain minors. Among other things, this chapter is intended to implement such statutory provisions.

• (Ord. 719 § 4, 1993; Ord. 789 § 1, 1996)

As used in this chapter:

"Abatement and related administrative costs" means all city costs associated with damage caused by graffiti, including but not limited to court costs, attorney's fees, cost of removal of graffiti or other inscribed material, cost of repair and replacement of property defaced by graffiti that cannot be removed cost effectively, and law enforcement time incurred by or charged to the city for identifying and apprehending the person(s) who caused the graffiti.

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

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City of Palm Desert, CA

PALM DESERT CODE

§ 9.40.010

§ 9.40.025

"Felt-tip marker or marking pen" means any indelible marker or similar implement with a tip which, at its broadest width, is greater than one-eighth inch, containing an ink or similar substance.

"Graffiti" means any inscription, word, figure or design marked, etched, scratched, drawn or painted on any surface without the express permission of the owner (or owner's representative) of such surface, regardless of the material of which the surface is composed.

"Graffiti implement" means any implement capable of marking a surface to create graffiti including, but not limited to, aerosol paint containers, paint sticks, felt-tip markers or marking pens, marking instruments, drill bits, grinding stones, scribes, glass cutters, or etching tools, or other similar implements capable of scarring glass, metal, concrete, stucco, wood or similar surfaces.

"Minor" has the same meaning as specified in Government Code Section38772.

"Owner's representative" means any person or entity expressly authorized by the owner of any property to permit another person to place inscriptions, words, figures or designs upon such property, or any person or entity in lawful possession of any property, whose right of possession includes the authority to permit or allow inscriptions, words, figures or designs to be placed upon such property.

"Paint stick" means a device containing a solid form of paint, wax, epoxy or other similar substance capable of being applied to a surface by pressure and, upon application, leaving a mark.

"Spray actuator" (also known as a "spray tip," "nozzle" or "button") means an object which is capable of being attached to aerosol paint containers for the purpose of spraying the substance contained therein.

(Ord. 658 § 1, 1991; Ord. 719 § 1, 1993; Ord. 789 § 2, 1996)

• A. No person shall sell or cause to be sold to any person under the age of eighteen years any aerosol container of paint or wide-tip marker.

• B. Evidence that a person, his or her employee, or agent, demanded and was shown bona fide evidence of majority and acted upon such evidence of majority in a transaction or sale shall be a defense to any criminal prosecution thereof.

• C. Any person who owns, manages, or operates a place of business wherein aerosol containers of paint and wide-tip markers are sold shall post in a conspicuous place a sign in letters at least three-eighths of an inch high stating: "Any person who maliciously defaces real or personal property with paint or any other liquid is guilty of vandalism which is punishable by a fine, imprisonment, or both."

• (Ord. 658 § 1, 1991)

Every person who owns, conduct, operates or manages a retail commercial establishment selling aerosol paint containers, or felt-tip marker or marker pens and paint sticks, or similar implements shall store or cause such containers or pens to be stored in an area viewable by, but not accessible to, the public in the regular course of business without an employee assistance, pending legal

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City of Palm Desert, CA § 9.40.025

PUBLIC PEACE, MORALS AND WELFARE

§ 9.40.060

sale or disposition of such containers or pens. It is the intent of this section to permit, but not to require, the viewing of aerosol paint containers and felt-tip marker or marker pens and paint sticks or similar implements while they are stored or displayed pending retail sale. (Ord. 719 § 5, 1993)

It shall be unlawful for any person to possess any spray actuator, as defined in this chapter, for the purpose of defacing, marking or damaging any public or privately owned property without the express consent of the owner of such property or the owner's representative. (Ord. 719 § 6, 1993)

No person shall wilfully or maliciously use any liquid substances, spray paint, chalk, dye or other similar substance to paint, mar or deface any public or privately owned real property within the city, whether such property is occupied, vacated or abandoned. (Ord. 658 § 1, 1991)

• A. Whenever the city manager or his or her designated representative determines that graffiti is so located on public or privately owned property within the city so as to be a public nuisance, the city manager or his or her designated representative is authorized to use city funds to provide, by any means necessary, for the removal of graffiti without reimbursement from the property owner upon whose property the graffiti has been applied. The property owner shall either remove the graffiti within twenty-four hours of verbal or written notification, or provide written consent and release of liability authorizing the city to remove the graffiti at any time it appears. Graffiti on fences and walls immediately adjacent to public rights-of-way will be removed without consent. The city's removal of graffiti by painting or repair shall not involve the painting or repair of a more extensive area than that area where the graffiti is located or exact matching of the existing paint color.

• B. In addition to the procedures established by this section, the city is authorized to remove graffiti as a public nuisance and assess for the cost of abatement pursuant to the abatement procedures of Chapter 8.20 of the municipal code whenever the property owner (or owner's representative) fails to remove the graffiti within forty-eight hours of notification or the city is unable to obtain a written consent and release of liability.

• C. Whenever the city incurs abatement or related administrative costs to remove graffiti from personal or real property, or to repair or replace property defaced by graffiti that cannot be removed cost effectively, the city may invoice the person(s) who caused the graffiti for such costs, which shall be a personal obligation and debt owed to the city by such person(s). In case of a minor who causes graffiti, an invoice may also be sent to the parents or guardians having custody and control of the minor, who shall be jointly and severally liable with the minor for the city's abatement and related administrative costs. Invoices shall be due and payable no later than thirty days following their receipt, except to the extent that period is tolled due to a timely request for an administrative hearing. After that, interest on the amount owing shall accrue at the maximum legal rate and the city may proceed to collect the debt through any lawful means, including the procedures established by this chapter and by applicable state law.

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City of Palm Desert, CA

PALM DESERT CODE

§ 9.40.060

§ 9.40.062

• (Ord. 658 § 1, 1991; Ord. 719 § 2, 1993; Ord. 789 § 4, 1996)

• A. An invoice for abatement and related administrative costs sent pursuant to Section 9.40.060(C) of this code shall include all of the following information:

  1. A statement notifying the recipient that he/she has been determined by the city to be responsible under Section 38772 of the Government Code and Chapter 9.40 of the city's municipal code for the city's expenses of removing certain graffiti in the city and/or repairing or replacing property damaged by such graffiti;

  2. The location and description of the graffiti for which abatement cost recovery is sought;

  3. The date by which the invoice must be paid and the fact that interest on the amount owing will accrue at the maximum legal rate if it is not timely paid;

  4. A statement notifying the recipient of his or her right to request an administrative hearing within ten days of receipt of the invoice regarding liability and/or the amount of costs sought, and the fact that the time period to pay the invoice will be tolled pending the outcome of the hearing;

  5. A statement notifying the recipient that if he/she does not pay the invoice or request a hearing within the time allowed, then the city's determinations regarding liability and costs will become final and nonappealable to any other city authority and the city will proceed with lawful collection methods, which in the case of a minor and his or her parents or guardians may include recording a lien or special assessment for the full amount of the invoice plus interest against property of the minor and against property of the parents or guardians.

• B. The city shall serve the invoice in one of the following ways: (1) by personal service; (2) by both regular first class mail and certified mail with return receipt requested; or, if neither of the previous two methods is available or successful in a given case, (3) by some other method reasonably calculated to provide actual notice to the recipient. If mail service is used, then the return receipt shall constitute evidence of the date the invoice was received. If the certified mail is not accepted, then the invoice will be deemed to have been received by regular mail three days after its mailing.

• C. Failure to comply with any of the foregoing requirements shall not render the invoice or other cost recovery proceedings defective if they meet minimum constitutional standards for due process.

• (Ord. 789 § 5, 1996)

• A. Any person sent an invoice for abatement or related administrative costs pursuant to Section 9.40.060(C) of this code is entitled to an administrative hearing regarding liability and/or the amount of costs sought to be recovered, if timely requested. A request for a hearing shall be timely if it is received by the city no later than the close of business on the tenth day following receipt of the invoice. A timely request for a hearing tolls the time for payment of the invoice until the recipient has been notified of the hearing officer's decision.

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City of Palm Desert, CA

PUBLIC PEACE, MORALS AND WELFARE

§ 9.40.062

§ 9.40.064

• B. If a hearing is timely requested, the city shall send the party requesting the hearing written notice of the time, date and location of the hearing. The notice shall be served in the same manner as the invoice and shall be reasonably calculated so as to give the recipient at least three days' advance notice of the hearing. Notice of the hearing officer's final decision after the hearing shall be similarly served.

• C. The scope of an administrative hearing shall be limited to either or both of the following issues: (1) liability for costs; and (2) the amount of costs sought to be recovered. The party requesting the hearing shall be entitled to submit evidence on either or both issues, which shall be duly considered by the hearing officer provided it is either presented during the hearing or received by the city manager or his or her designee no later than the close of business on the day before the hearing. No formal rules of evidence shall apply. The party requesting the hearing shall be entitled to attend the hearing but such attendance shall not be mandatory.

• D. The hearing officer shall be the city manager or his or her designee. The hearing officer's decision shall be final and nonappealable to any other city authority. Failure to timely request a hearing waives any right to the hearing and renders the determinations reflected in the invoice similarly final and nonappealable.

• (Ord. 789 § 6, 1996)

If an invoice is not paid in a timely manner and the city's determinations regarding the invoice have become final and nonappealable, then the city may proceed to collect the debt through any lawful means including, in the case of a minor and the parents or guardians having custody and control of the minor, imposition of a "graffiti nuisance abatement lien" following the procedures of Government Code Section38773.2 or, as an alternative to such a lien, a special assessment following the procedures of Government Code Section 38773.6. To the extent the aforementioned state law and this chapter of the municipal code do not specify a particular aspect of the graffiti nuisance abatement lien or special assessment imposition procedure, the procedures outlined in Sections 8.20.145 and 8.20.150 of this code regarding conventional nuisance abatement liens and special assessments may be followed, provided they do not conflict with applicable state law.

(Ord. 789 § 7, 1996)

• A. Pursuant to Welfare and Institutions Code Section 741.14, the city does elect to have the probation officer of Riverside County recoup for it, through juvenile court proceedings in accordance with Section 742.16 of the Welfare and Institutions Code, its costs associated with defacement by minors of its property and the property of others by graffiti or other inscribed material.

• B. For purposes of this section only, the city council makes the following cost findings, the specific dollar amounts of which shall be set by council resolution:

  1. The city's average costs per unit of measure of identifying and apprehending a person subsequently convicted or otherwise found by a court proceeding to have committed an act prohibited by Section 594, 594.3, 594.4,640.5, 640.6 or 640.7 of the Penal Code are as follows:

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City of Palm Desert, CA

PALM DESERT CODE

§ 9.40.064

§ 9.40.080

• a. County Sheriff services rendered to the city under contract, based on the estimated value of hours spent by Sheriff's personnel and miles driven by patrol vehicles (including fractions thereof),

• b. Cost per hour of city staff time,

• c. Cost per mile of city vehicle usage;

2. The city's average costs per unit of measure of removing graffiti or other inscribed material, or of repairing or replacing property defaced with graffiti or other inscribed material that cannot be removed cost effectively, may include any of the following:

   • a. Graffiti removal services rendered to the city under contract with Sunline Transit Agency, based on the estimated value of hours spent by Sunline personnel and miles driven by Sunline vehicles (including fractions thereof),

   • b. Cost per hour (including fractions thereof) of city staff time,

   • c. Cost per mile (including fractions thereof) of city vehicle usage,

   • d. Costs per item to repair or replace the following types of property frequently defaced with graffiti or other inscribed material that cannot be removed cost effectively: street signs and posts,

e. Per square inch cost (including fractions thereof) of paint and material. (Ord. 789 § 8, 1996)

• A. A reward in an amount established by resolution of the city council is authorized, offered and may be paid by the city to any person who provides information leading to the determination of the identify of, and the apprehension of, any person who wilfully or maliciously paints, mars or defaces any public or private structure located on private or public property within the city.

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

• (Ord. 658 § 1, 1991)

It is unlawful for any person to violate any provision or fail to comply with any of the requirements of this chapter. Any person violating any provision of this chapter or failing to comply with any of the requirements is deemed guilty of a misdemeanor in accordance with Chapter 1.12 of the municipal code.

(Ord. 719 § 9, 1993)

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City of Palm Desert, CA

PUBLIC PEACE, MORALS AND WELFARE

§ 9.48.010

§ 9.48.010