Placerville Municipal Code Ch. 13 Abatement of Graffiti

The purpose of this chapter is to provide a program and enforcement tools in addition to those already provided by state law for the removal of graffiti from property, buildings, structures, walls and places on both public and private property, and to prevent and control further spread of graffiti in the city. The city council finds and declares that graffiti on public or private buildings, structures and places, creates a condition of blight within the city that tends to reduce the value of property, promotes deterioration of surrounding property, invites vandalism, and results in the loss of pride in affected neighborhoods and loss of business to neighboring commercial enterprises, all to the detriment of the city. While state law imposes criminal penalties for the application of graffiti, state law does not provide adequate means for prompt abatement and removal of graffiti.

The city council further finds and declares that the proliferation of graffiti constitutes a public nuisance that presents an imminent danger to the public safety and welfare. Law enforcement officials and other experts agree that immediate removal of gang related graffiti is necessary to reduce the risk of violent and other criminal activities associated with gangs and gang territories. The failure to immediately abate graffiti encourages the proliferation of additional graffiti which results in neighborhood blight, additional criminal activity, and increased costs of abatement. Such a public nuisance therefore constitutes an immediate threat to public health and safety that must be abated.

The city council intends, through the adoption of this chapter, to give notice to all who disregard property rights of others, that the city will strictly enforce all laws prohibiting graffiti, including, but not limited to, California Penal Code sections 594, 594.1 and 640.5, California Vehicle Code section 13202.6, and all provisions of this chapter. The city council further intends by adoption of this chapter to implement a graffiti eradication program to assist Placerville residents and businesses with the eradication of graffiti from public and private property. (Ord. 1561, 8-24-1999)

For the purposes of this chapter, "graffiti" shall mean any inscription, work, figure, picture, mark, design or other graphic representation prohibited by law or unauthorized by the owner or person in possession of the subject property, which is marked, etched, drawn, painted, pasted, or otherwise applied on any public or private real property, and which can be seen by any person using any public right of way. (Ord. 1561, 8-24-1999)

The city council finds and declares that the existence of graffiti on any public or private property within the incorporated area of the city constitutes a public nuisance that presents an imminent danger to the public safety and welfare, and that graffiti may be abated according to the provisions and procedures set forth in this chapter. (Ord. 1561, 8-24-1999)

(A) It is unlawful for any person to apply "graffiti", as defined in section 7-13-2 of this chapter, upon any real or personal property, whether publicly or privately owned, including any buildings, structures, fences, walls, signs, sidewalks, windows, streets, vehicles, trees, or other such places or things within the city.

(B) No person owning or otherwise in control of any real property within the city shall permit or allow any graffiti to remain on such property when the graffiti is visible from any public right of way or other public or private property. (Ord. 1561, 8-24-1999)

The chief of police and/or his/her designee shall enforce the provisions of this chapter. (Ord. 1561, 8-24-1999)

The chief of police and his/her designee, in accordance with the provisions of this chapter, may enter upon private property within the city for the purposes of administering and enforcing this chapter, to inspect graffiti on any property within the city, and to remove, or cause to be removed, graffiti on any property within the city. (Ord. 1561, 8-24-1999)

Whenever the chief of police or his/her designee determines that graffiti exists on any real property in the city, which is visible from a public right of way or other public or private property, the chief of police or his/her designee shall cause a notice to be issued to abate such nuisance. The property owner shall have ten (10) days after the date of the notice to remove the graffiti, or the property will be subject to abatement by the city. (Ord. 1561, 8-24-1999)

The notice to abate graffiti pursuant to section 7-13-7 of this chapter shall be served upon the owner of affected real property, as such owner's name and address appears on the last equalized property tax assessment rolls of the county of El Dorado. 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; or

(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.

(C) In addition to the above manners of service, a copy of the notice shall be posted on the real property.

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 , Placerville, 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 cost 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 real property until paid.

You may also consent to the City removing the graffiti by executing the enclosed Consent to Enter Release of Liability form and returning it to the City within ten (10) days of the date of this letter.

In the event you desire to contest the City's determination that a nuisance exists on your real property with respect to said graffiti, you may request a hearing in front of the City Manager, at which time you will be given an opportunity to be heard regarding the proposed abatement. Request for such a hearing must be made within ten (10) days of the date of this notice. Failure to request such a hearing waives your right to contest the City's determination that a nuisance exists with respect to your property, and, unless said nuisance is abated by you, will result in the City entering upon your property to abate said nuisance.

(Ord. 1561, 8-24-1999)

In the event a hearing before the city manager is requested pursuant to section 7-13-8 of this chapter, the city manager shall schedule such hearing and provide notice thereof to the requesting party, not less than ten (10) days prior to the hearing date. Said notice shall be served in accordance with the provisions of section 7-13-8 of this chapter. The failure of any person to receive the notice shall not affect the validity of any proceedings under this chapter. (Ord. 1561, 8-24-1999)

The hearing to determine whether a nuisance exists shall be conducted by the city manager. At the hearing, the city manager shall receive and consider all relevant evidence. Any interested person shall be given a reasonable opportunity to be heard in conjunction therewith. Based on the evidence presented, the city manager shall determine whether a nuisance exists within the meaning of this chapter. (Ord. 1561, 8-24-1999)

Within five (5) days after the hearing, the city manager shall give written notice of the decision to the owner and any other person requesting the same. Said notice shall be served in accordance with the provisions of section 7-13-8 of this chapter. If a nuisance is determined to exist, the notice shall contain an order of abatement directed to the owner of the affected property, or the person in control and/or charge of the property, and shall set forth the nature of the graffiti, its location on the premises, and the time and manner for its abatement. The city manager may impose such conditions as are reasonably necessary to abate the graffiti. The decision of the city manager may be appealed to the city council by filing a written request for appeal with the city clerk within ten (10) days after the city manager's notice of decision to the owner. (Ord. 1561, 8-24-1999)

If the city manager's decision is not appealed and the nuisance is not abated within the time set by the notice of intent to remove graffiti, the chief of police or his/her designee is authorized to enter upon the premises and abate the graffiti nuisance through the utilization of labor, equipment and materials as directed by the chief of police. The graffiti shall be removed as authorized herein, but the removal shall not involve the painting or repair of a more extensive area than is necessary for such removal. The chief of police shall then prepare a statement of the fact of such abatement, and the expense incurred in abatement, and shall file the statement with the city clerk. Such statement shall identify the premises, state the costs of the action taken, and shall be done in accordance with section 7-13-15 of this chapter. If the premises includes more than one parcel of real property, each separate parcel, or all of the parcels, may be set forth in the same statement. (Ord. 1561, 8-24-1999)

(A) The Property Owner's Consent To Remove: Whenever the chief of police, or his/her designee, determines that graffiti is located on public or private property so that graffiti may be viewed by a person using any public right of way or other public property, the chief of police or his/her designee is authorized to provide for and use public funds, if necessary, to remove graffiti upon the following conditions:

1. Public Property: Whenever the chief of police or his/her designee determines that graffiti exists upon property owned by the city, it shall be removed by the city public works department, or through the utilization of other city resources, as soon as possible, or within five (5) days. When the property is owned by a public entity other than the city, the removal of graffiti is authorized after securing written consent of the public agency having jurisdiction over the property.

2. Private Property: Where the subject property is privately owned, the removal of graffiti is authorized after the chief of police or his/her designee secures the written consent of the owner of the property, and the owner executes a release and waiver approved as to form by the city attorney.

3. Painting Or Repair: The graffiti shall be removed as authorized herein, but the removal shall not involve the painting or repair of a more extensive area than is necessary for such removal.

(B) Removal By City Without Consent Of The Property Owner: When the property owner has failed to either remove the graffiti or consent to its removal by the city within the time period specified in the notice set forth under section 7-13-7 of this chapter, the chief of police or his/her designee may remove such graffiti and abate the nuisance according to the provisions of sections 7-13-7 through 7-13-12, inclusive, of this chapter. (Ord. 1561, 8-24-1999)

The chief of police or his/her designee may summarily abate graffiti at the expense of the city when it appears the continued presence of such graffiti presents an imminent danger to the public safety and welfare. If the chief of police or his/her designee intends to take such action as allowed by this section, the chief of police or his/her designee shall notify the property owner and/or possessor of the property of his/her intent to enter the property and take such action, at least twenty four (24) hours prior to entering on the property. If the property owner and/or person possessing the property has not objected within said twenty four (24) hour period, such person(s) will be deemed to have consented to summary abatement by the city. If the chief of police or his/her designee is notified either in writing or verbally that the property owner and/or person in possession of the property objects to the summary abatement of graffiti on his or her property, the chief of police or his/her designee shall terminate his/her efforts to summarily abate such graffiti, and comply with the hearing procedure set forth in section 7-13-9 of this chapter. Any such hearing will receive priority, and shall be set as soon as practicable. (Ord. 1561, 8-24-1999)

The chief of police or his/her designee 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 shall render an itemized report in writing to the responsible party, and as appropriate, the owner of the property. 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, the costs of printing, and mailing required hereunder. (Ord. 1561, 8-24-1999)

The responsible party or owner may request a cost hearing. The cost hearing shall be in front of the city council, at which time the responsible party or owner or any interested party may contest the appropriateness of the costs of abatement, as well as present evidence of financial or physical hardship with respect to the abatement of the nuisance and/or the paying of the costs of abatement. Notice of the cost hearing shall be provided to the requesting party at least ten (10) days before the date of said hearing and shall be served in accordance with section 7-13-8 of this chapter. At the time and place fixed for receiving and considering the record of costs, the city council may make such revision, correction or modification in the report as it deems just. The decision of the city council on all protests and objections which may be made shall be final and conclusive. (Ord. 1561, 8-24-1999)

As to such property where the responsible party is the owner, if all or any portion of the costs of abatement remain unpaid after thirty (30) days, pursuant to the authority created by law, including Government Code section 38773 et seq., such portion shall constitute and is hereby declared to constitute a lien on the property which was the subject matter of the abatement effort. Resolution of lien shall be presented to the city council, and upon passage and adoption thereof, shall cause a certified copy of the lien to be recorded with the recorder's office of El Dorado County.

A graffiti nuisance abatement lien shall be recorded in the office of the county recorder in El Dorado County. From the date of recording, the lien shall have the force, effect and priority of a judgment lien.

A graffiti nuisance abatement lien or a special assessment authorized by this chapter shall specify the amount of the lien or special assessment; the name of the agency on whose behalf the lien or special assessment is imposed; the date of the abatement order; the street address; legal description and assessor's parcel number of the parcel on which the lien or special assessment is imposed; and the name and address of the recorded owner of the parcel. (Ord. 1561, 8-24-1999)

Procedure to correct abatement and related administrative costs from persons creating, causing, committing or maintaining any nuisance created by graffiti or other inscribed material.

In addition, parents or legal guardians are jointly liable with the minor for costs associated with the abatement of graffiti due to the misconduct of their children.

(A) Graffiti abatement costs shall include, but not be limited to, court costs, attorney fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, the law enforcement costs incurred by the city in identifying and apprehending the minor or persons creating the graffiti.

(B) The expense of abatement of any nuisance resulting from graffiti or other inscribed material on the property of another by a minor may result in a lien against the property and a personal obligation of the parent or guardian of the minor.

(C) Notice to the minor and notice to the parent or guardian of the minor shall be made prior to the collection of abatement and related costs and prior to the recordation of a lien on a parcel of land owned by the parent or guardian, pursuant to the requirements of law as set forth in section 7-13-15 of this chapter. (Ord. 1561, 8-24-1999)

Procedure to collect abatement and related administrative costs from property owner on whose property the graffiti is located.

(A) Nuisance abatement costs shall include, but not be limited to, the costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, and any administrative costs incurred regarding the processing of a lien.

(B) Notice is required prior to the recordation of the lien to the owner of record of the land where the graffiti is located, based on the last equalized assessment roll, or the supplemental roll, whichever is more current.

(C) Notice to the property owner shall be made prior to the collection of abatement and related costs and prior to the recordation of the lien on a parcel of land pursuant to the requirements of law as set forth in section 7-13-15 of this chapter. (Ord. 1561, 8-24-1999)

As an alternative to the lien procedures outlined in this chapter, the city also establishes the following procedure for collection of nuisance abatements costs as a special assessment against a parcel of property owned by the property owner on whose property the graffiti is located, and against a parcel of property owned by a person creating graffiti, or owner by a parent or guardian of a minor who is responsible for creating graffiti:

(A) Notice to the property owner shall be by certified mail if the property owner's identity can be determined from the records of the county assessor or county recorder. The notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three (3) years by the tax collector for unpaid delinquent assessments. All laws applicable to the levy, collection and enforcement of taxes shall be applicable to the special assessment, subject to any restrictions set forth in the special assessment law related to graffiti and other inscribed material nuisance abatement law.

(B) Notice of special assessment against the property shall be recorded in El Dorado County. (Ord. 1561, 8-24-1999)

The owner, occupant or agent of any parcel of real property within the city who shall permit or allow the existence of a public nuisance as defined in this chapter, upon any parcel of real property owned, occupied or controlled by him or her, or who shall violate any provisions of this chapter, shall be guilty of an infraction, and upon conviction thereof shall be subject to a fine not exceeding one hundred dollars ($100.00) for a first violation, a fine not exceeding two hundred dollars ($200.00) for a second violation of the same provision within one year, and a fine not exceeding five hundred dollars ($500.00) for each additional violation of the same provision within one year. (Ord. 1561, 8-24-1999)

Any owner, lessee, occupant, or other interested person having any objections or contesting any proceeding taken on appeal by the city council in ordering the abatement of any public nuisance under the provisions of this chapter, must bring an action to contest such decision within thirty (30) days after the date of such decision of the city council. Otherwise, all objections to such decision shall be deemed waived. (Ord. 1561, 8-24-1999)

The procedures set forth in this chapter are not exclusive and nothing contained herein shall be deemed to preclude the pursuit of any available remedy, whether it is civil or criminal. (Ord. 1561, 8-24-1999)

If any section, subsection, sentence, clause, phrase, or portion of this chapter 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 chapter. The city council declares that it would have adopted each provision or portion thereof, irrespective of the fact that portions of this chapter may be declared invalid or unconstitutional. (Ord. 1561, 8-24-1999)