Chapter 7.26 — GRAFFITI; REMOVAL

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Aerosol paint container means any canister, can, bottle, container, or other receptacle which contains any substance commonly known as paint, stain, dye and/or any other pigmented substance which is and/or can be pressurized in order to propel any such substance.

Etchers means any tool, device and/or other mechanism, including, but not limited to, glass etchers, metal etchers, cutting instruments, drill bits or any other instrument that is capable of permanently scratching or otherwise marking any surface including, but not limited to, glass, mirrors, windows, steel, aluminum, brass, tin, fiberglass, wood, plastic, concrete or any other surface.

Graffiti means any unauthorized defacement by inscription, symbol, design and/or configuration of letters and/or numbers whether written, drawn, scribed, etched, marked, painted, stained, stuck on or adhered by any means whatsoever, to any surface whether publicly or privately owned, including, but not limited to, trees, signs, mailboxes, poles, fixtures, utility boxes, trash containers, walls, windows, roofs, paths, fences, walks, streets or pavement, under/overpasses, tunnels, bridges, trestles, drainage facilities, buildings and/or the interior or exterior of any other structure or surface. The term "graffiti" includes the commonly used term "tagging" and those two terms shall be interchangeable as used in this chapter.

Markers means any implement commonly known as an indelible or permanent ink marker and/or marking pen and/or similar implement which contains any pigmented substance, including, but not limited to, ink or any other substance which cannot be easily and completely removed with water after said substance has dried, which implement at its broadest width is greater than one-eighth inch or which leaves a mark of at least one-eighth inch.

Paint stick means any device which contains any substance, solid or liquid, including, but not limited to, any form of any substance commonly known as paint, stain, ink, chalk, wax, epoxy and/or any other similar substance which can be applied to any surface by such means as applying pressure to and/or contacting any surface in such a way as to leave any visible mark, which at its broadest width is greater than one- eighth inch or which leaves a mark of at least one-eighth inch.

(Code 1972, § 7.26.010; Ord. No. 1005, § 3, 1995)

Graffiti which appears on any property and/or structure so as to be visible from a public right-of-way or public-owned property or from a common area (including, but not limited to, the street or beach) is declared to be a public nuisance subject to abatement as provided for by this Code.

(Code 1972, § 7.26.020; Ord. No. 1005, § 3, 1995)

It is unlawful for any person or group of persons to apply or cause or attempt to apply or cause graffiti or to tag, including, but not limited to, any of the following acts:

(1)

Drawing, scribing, etching, marking, painting, staining, sticking or adhering by any means whatsoever, any unauthorized inscription, symbol, design, and/or any configuration of letters and/or numbers upon any surface, whether publicly or privately owned, including, but not limited to, trees, mailboxes, signs, poles, fixtures, utility boxes, trash containers, fences, walls, windows, roofs, paths, walks, streets or pavement, under/overpasses, tunnels, bridges, trestles, drainage facilities, buildings and/or the interior or exterior of any other structures or surfaces.

(2)

Attempting to draw, scribe, etch, mark, paint, stain, stick or adhere by any means whatsoever, any unauthorized inspection, symbol, design, and/or any configuration of letters and/or numbers upon any surface, whether publicly or privately owned, including, but not limited to, trees, mail boxes, signs, poles, fixtures, utility boxes, walls, windows, roofs, paths, walks, streets or pavement, fences, trash containers, under/overpasses, tunnels, bridges, trestles, drainage facilities, buildings and/or the exterior or interior of any other structures or surfaces.

(3)

Conspiring to, or participating in any way in causing or attempting to cause graffiti, including, but not limited to, acting as a "lookout."

(Code 1972, § 7.26.030; Ord. No. 1005, § 3, 1995)

(a)

It is unlawful and a violation of this Code for any person to give, sell or loan to any other person any implement with the knowledge such implement may be used to cause or attempt to cause graffiti. It is unlawful for any retail or commercial merchant to store, stock or display any aerosol paint container, paint stick or marker in such a way that it may be handled by or accessible to anyone who is not an employee or otherwise authorized personnel, without the assistance of said employee or authorized personnel.

(b)

All such merchants who sell aerosol paint containers, paint sticks or markers as part of a business shall conspicuously display a sign applicable to all such aerosol paint containers, paint sticks or markers available for sale stating substantially the following:

(1)

"Must be 18 years of age or older to purchase. Must have valid I.D. to purchase"; and

(2)

"Any person who maliciously defaces real or personal property with graffiti is guilty of a misdemeanor punishable by fine, imprisonment, or both."

All signs must be at least ten inches by 16 inches, with letter size of at least three-eighths inch, and posted in a conspicuous place within six feet of the implement or paraphernalia being offered for sale. Such signs may be obtained from and furnished by the city.

(Code 1972, § 7.26.040; Ord. No. 1005, § 3, 1995)

(a)

Prohibition against allowing graffiti to remain. It is unlawful for any owner, occupant or person otherwise in control of any property within the city to permit any graffiti to exist, or to allow any graffiti to remain on any surface located on such property when the graffiti is a public nuisance under section 7.26.020 and notice of repair, replacement or removal has been given under subsection (b) of this section.

(b)

Removal from noncity property.

(1)

It is the duty of every property owner, occupant or person otherwise in control of any property within the city to remove graffiti promptly from his property or to repair or replace that property which cannot be repaired. When graffiti is a public nuisance under section 7.26.020, the city may cause a written notice to be served upon the owner of the affected property requesting repair, replacement or removal of the graffiti. Notice shall be deemed given upon personal service, or 48 hours after being deposited in the United States mail, first class certified, postage prepaid, directed to the intended individual.

(2)

Notwithstanding any other provisions of this chapter, if such property owner, occupant or person otherwise in control of the property, fails to remove the graffiti within 48 hours after receipt (as defined in subsection (b)(1) of this section) of the notice requiring the removal of the graffiti, the graffiti may be abated by the city pursuant to the provisions of this Code, including the billing of the cost to the property owner. The unpaid costs of abatement may be placed on the tax roll in the manner allowed by law.

(c)

Removal from city property. Whenever the city manager or his designated representative determines that graffiti exists upon property owned by the city, it may be removed or the property repaired or replaced by the city at its expense as soon as possible.

(d)

Cost recovery.

(1)

Parental civil liability. Consistent with Civil Code section 1714.1, in situations where graffiti is willfully caused by individuals under the age of 18, the parent or legal guardian of said minor shall be responsible for its removal or payment for the cost thereof. The city may recover such costs up to the maximum amount allowed by law ($20,000.00 plus an inflation factor) against the parent or legal guardian.

(2)

The city elects and thus may utilize the cost recovery methods set out in sections 7.26.070 and 7.26.080.

(Code 1972, § 7.26.050; Ord. No. 1005, § 3, 1995)\

In approving tentative or parcel maps, conditional use permits, plot plans, public use permits, or other similar land use entitlement, the city may impose terms or conditions designed to prevent and/or facilitate the removal of graffiti.

(Code 1972, § 7.26.060; Ord. No. 1005, § 3, 1995)

(a)

Collection by juvenile court. As set out in Welfare and Institutions Code section 742.10 et seq., the city elects to have the ability to request the probation officer of the county to recoup, in juvenile court proceedings, its costs associated with defacement by minors of its and others' property with graffiti, as those costs are set out in subsection (b) of this section.

(b)

Cost measures.

(1)

The city finds that the average cost to the city for removing graffiti or repairing or replacing property are as follows:

a.

Cost per square inch of removing painted graffiti from property: $2.25.

b.

Cost per square inch of repairing property: $3.125.

c.

Cost per hour for employees and cost per mile for vehicles and research costs (minutes of computer time) of the city police department in identifying and apprehending a minor/person later convicted of a graffiti- related offense (PC 549, 549.3, 594.4, 640.5, 640.6, 640.7 as sections may be added or those may be amended from time to time): $95.00.

d.

Cost per square inch of replacing property: $3.125.

(2)

These costs include direct and indirect overhead and shall be reviewed and updated as necessary every three years.

(c)

Transmitting cost data. When the city police department apprehends a minor/person for one of the offenses stated above, in order to proceed with juvenile court recovery, the city shall transmit to the probation officer and juvenile court data sufficient to determine the city's law enforcement, removal, repair and replacement costs as set out in subsection (b) of this section. The city also shall participate in procedures developed by the probation officer.

(Code 1972, § 7.26.070; Ord. No. 1005, § 3, 1995)

(a)

Lien for costs. The cost of abatement of graffiti, including, but not limited to, court costs, attorney's fees, costs of graffiti removal, repair or replacement, and law enforcement costs of identifying and apprehending, may be made a lien or special assessment on the minor and/or the property of his parents or legal guardian, having custody or control of the minor, as set out in this section. Such costs shall be determined as set out in section 7.26.070(b).

(b)

Notice of lien.

(1)

At such time as the city has identified a minor who has defaced property with graffiti, the city may notify the minor and his parent or legal guardians of the city's intention to place a lien or special assessment on their property (as identified in the notice) for the costs identified in subsection (a) of this section if the amount of the lien or assessment is not paid by the date specified in the notice or the minor/parent fails to protest the proposed lien/assessment.

(2)

The notice shall state the amount of costs, the amount of proposed lien, date of a city council public hearing, at least ten days away, at which the lien/assessment will be considered and the minor/parent's or legal guardians right to protest the proposed lien/assessment at that time.

(c)

Service of notice. The notice shall be served in the same manner as a civil summons. If the minor/parent or legal guardians cannot be found after a diligent search, the notice may be served by conspicuously posting the notice on the property for ten consecutive days and by publishing the notice under Government Code section 6062 in a newspaper of general circulation in the county.

(d)

Public hearing. At the time, date and place set for public hearing, the city council shall consider the lien/assessment and any protests and approve, modify or reject the amount of the lien/assessment or its collection. The council shall determine whether to utilize a lien or special assessment.

(e)

Recordation of lien. The lien shall be recorded in the county recorder's office, where it shall have the force, effect and priority of a judgment lien. The city may foreclose on the lien. The city also may recover costs regarding processing, recording or foreclosing on the lien.

(f)

Collection of assessment. A special assessment may be collected at the same time, in the same manner and subject to the same laws, penalties and procedures for delinquencies as ordinary municipal taxes. 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 attached 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.

(Code 1972, § 7.26.080; Ord. No. 1005, § 3, 1995)

(a)

Any violation of this chapter is a misdemeanor and shall be punishable by either:

(1)

A fine of up to $1,000.00, or up to six months in the county jail, or both, and/or community service; or

(2)

If applicable, the provisions of Penal Code section 594.

(b)

As a part of any sentence or other penalty imposed, the court may also order that restitution be paid to the victim by the admitted or convicted perpetrator, and in the case of a perpetrator who is a minor, by the minor's parent or lawfully designated guardian or custodian, pursuant to, inter alia, Civil Code section 1714.1 and California Penal Code sections 640.5 and 640.6. Restitution may include the amount of any reward.

(Code 1972, § 7.26.090; Ord. No. 1005, § 3, 1995)

Rewards for information leading to the identification, apprehension and conviction of any person who has placed graffiti upon any public or private property in the city are authorized in a range from $100.00 to $500.00. Whether a reward is appropriate, and the amount thereof, shall be determined at the discretion of the city council or manager, and based on the severity of the crime and the utility of the information received.

(Code 1972, § 7.26.100; Ord. No. 1005, § 3, 1995)

This chapter shall be interpreted so as to work with and in conjunction with (when and where applicable) any and all state and/or local ordinances relating to the control of graffiti and/or related vandalism, including, but not limited to, sections 594, 594.1, 594.3, 640.5, 640.6, of the California Penal Code; section 1714.1 of the California Civil Code; and section 53069.3 of the California Government Code.

(Code 1972, § 7.26.110; Ord. No. 1005, § 3, 1995)