Pleasanton Municipal Code Ch. 9.34 Graffiti Abatement

A. The purpose of this chapter is to provide a program and enforcement tools in addition to those already provided by state law to remove graffiti from public and private property and to prevent and control the further spread of graffiti in the city by administering and financing graffiti removal, educating the community on the prevention of graffiti and enforcing graffiti laws.

B. The increase of graffiti on public and private buildings, structures, and other places is creating a condition of blight within the city which results in deterioration of property and business values for adjacent and surrounding properties, all to the detriment of the city.

C. The city council finds and determines that graffiti is detrimental to the public health, safety, and general welfare and constitutes a public nuisance which must be abated so as to avoid the detrimental impact of such graffiti on the city and to prevent the further spread of graffiti. It is further the intent of the city council, through the adoption of this chapter to give notice to all who disregard the property rights of others that the city will strictly enforce all laws prohibiting graffiti, including, but not limited to: Sections 594, 594.1, 594.6, 640.5 and 640.6 of the California Penal Code; Section 13202.6 of the California Vehicle Code; and the provisions of this chapter.

(Ord. 1713 § 1, 1997)

For purposes of this chapter, the following words or phrases shall have meanings as provided in this section:

"Abatement"

means removing or covering over of graffiti by such means and in such manner and to such extent as is necessary in the interest of the general health, safety, and welfare of the community as determined by the city manager.

"City manager"

includes the city manager or the city manager's designee.

"Expense of abatement"

includes, but is not limited to, court costs, costs of removal of graffiti, costs of repair and replacement of defaced property, recording costs, costs of providing notice to the property owners and/or responsible party, law enforcement costs incurred by the city in identifying and apprehending the person who created, caused, or committed graffiti on property within the city of Pleasanton, costs of administering and monitoring the participation of a person, and if the person is a minor, the minor and the minor's parent or guardian in a graffiti abatement program, and attorney fees by the prevailing party pursuant to Government Code Section 38773.5(b).

"Graffiti"

means any unauthorized inscription, word, figure, mark, design, or other inscribed material that is written, marked, etched, scratched, drawn, sprayed, painted, pasted, or otherwise affixed to any surface on any property to the extent that same was unauthorized by the owner thereof or, despite authorization, is deemed by the city council to be a public nuisance.

"Property"

means real or personal property, whether publicly or privately owned, within the city of Pleasanton.

(Ord. 1713 § 1, 1997)

The city council finds and declares that the existence of graffiti anywhere within the city is a public and private nuisance and may be abated as provided in this chapter.

(Ord. 1713 § 1, 1997)

Any person who has created, caused or committed graffiti within the city shall have the duty to abate the same immediately, but not longer than 72 hours after notice by the city or by the owner of the property involved. Each instance of failure by any person to abate graffiti following notice shall constitute a separate violation. Every day that said graffiti is not abated after notice shall constitute a separate offense.

(Ord. 1713 § 1, 1997)

Graffiti located on property within the city so as to be capable of being viewed by a person utilizing any public right-of-way may be abated by the city at the property owner's expense as a public nuisance after service of a notice to abate as herein set forth.

(Ord. 1713 § 1, 1997)

A. Written Notice. Whenever the city is apprised of the presence of graffiti within the city, the city shall serve a written notice to abate such graffiti upon the owner of the affected premises as such owner's name and address appears on the last equalized assessment roll or the supplement roll, whichever is more current.

B. Information in Notice. The notice to abate the graffiti shall set forth the following:

1. The street address or other description sufficient to identify the property affected.

2. The length of time permitted for voluntary abatement of the graffiti which length of time shall be no less than 10 days.

3. A statement that the property owner may, within seven days of service of the notice to abate, file a request for hearing if the owner disagrees with the demand to abate the graffiti.

4. A statement that if the graffiti is not voluntarily abated within the stated period, the city will abate the graffiti. If the property is real property, the expense of abatement shall become a charge and shall be a lien against the property.

C. Service of Notice.

1. The notice to abate the graffiti shall be served in the same manner as summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. If the owner of record, after diligent search, cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in a newspaper of general circulation published in Alameda County pursuant to Government Code Section 6062.

2. The failure to make or attempt such service on any person as required herein shall not invalidate any proceedings under this chapter as to any other person duly served.

(Ord. 1713 § 1, 1997)

A. A request for hearing must be received by the city clerk within seven days of the service of the notice to abate. The city manager shall set a time and date for hearing and notify the person requesting the hearing of the time, date, and place. The hearing shall be before the city manager. The hearing shall be an opportunity for the person requesting the hearing to present reasons why the graffiti should not be abated at the person's expense.

B. At the conclusion of the hearing, the city manager shall issue a decision in writing upholding or denying the requirement of abatement. If the requirement is upheld, the decision shall contain an order to abate and a deadline for abatement and shall be served on the person requesting the hearing by first class mail, postage prepaid. The decision of the city manager shall be final.

(Ord. 1713 § 1, 1997)

A. If the graffiti is not abated completely within the time prescribed in the notice to abate or, if the owner timely requested a hearing within the time prescribed in that hearing's final decision, the city manager shall cause the graffiti to be abated by city personnel or by private contract. The city or its private contractor is expressly authorized to enter upon the premises to abate the graffiti.

B. The city manager shall keep an accounting of the expense of abatement and shall render the accounting of such expenses to the person or persons receiving the notice to abate. Such person or persons receiving the notice to abate shall be liable to the city for any and all expenses of abatement.

C. If payment is not made within 30 days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of $100.00 plus interest on the unpaid amount plus penalty, which interest shall accrue at the rate of one and one-half percent per month until paid.

D. If all or any portion of the expense of abatement accounted by the city manager remains unpaid after 30 days from the date of the demand for payment, pursuant to Government Code Section 38773.1, 38773.2, 38773.5, 38773.6, and 38773.7, such portion thereof shall constitute and is hereby declared to constitute a lien on the real property which was the subject of the notice assessment against the real property. The city manager shall present a resolution of lien to the city council, and upon passage and adoption thereof, shall cause a certified copy thereof to be recorded with the Alameda County Recorder's office. Any such lien not paid by June 30th of each year shall, upon adoption of a resolution by the city council, may be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

E. Instead of making the expense of abatement a lien upon the real property under subsection D of this section, the city may make the expense the personal obligation of the property owner, tenant or other person creating, causing, committing or maintaining the nuisance. In such a case, all of the procedures of this chapter apply except those specially related to assessment of the property.

(Ord. 1713 § 1, 1997)

If the city has used its funds pursuant to this chapter to remove graffiti or repair or replace property defaced by graffiti, the city may recover such expense of abatement from the person who has created, caused, or committed the nuisance as follows:

A. The city manager shall give the person, and if the person is a minor, the minor's parent or guardian, not less than 48 hours' notice of a hearing to be held by the city manager for the purpose of showing cause why the city should not recover the expense of abatement from the person, and if the person is a minor, the minor's parent or guardian.

B. The hearing shall be before the city manager. The hearing shall be an opportunity for the person requesting the hearing to present reasons relative to the recovery of the expense of abatement from the person, and if the person is a minor, from the minor and the minor's parent or guardian.

C. At the conclusion of the hearing, the city manager shall issue a decision in writing whether the city should recover expense of abatement from the person and if the person is a minor, the minor and the minor's parent or guardian. If the requirement for payment is upheld, the decision shall contain an accounting and a demand for payment. A copy of the decision shall be served on the person, and if the person is a minor, the minor and the minor's parent or guardian, by first class mail, postage prepaid. The decision of the city manager shall be final.

D. The parent or guardian of the minor shall be jointly and severally liable with the minor for the expense of abatement under Government Code Section 38772.

E. If payment is not made within 30 days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of $100.00 plus interest on the unpaid amount plus penalty, which interest shall accrue at the rate of one and one-half percent per month until paid.

F. If all or any portion of the expense of abatement accounted by the city manager remains unpaid after 30 days from the date of the demand for payment, the portion thereof unpaid including any penalty and interest thereon, shall constitute and is hereby declared to constitute a lien under Government Code Sections 38772 and 38773.2 against the person, and if the person is a minor, against the property of the minor and against the property of the minor's parent or guardian. Prior to recording a notice of lien, the city manager shall provide notice under Government Code Section 38773.2. Any such lien not paid by June 30th of each year shall, upon adoption of a resolution by the city council, may be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures, and sale in case of delinquency as provided in the Civil Code of California.

G. As an alternative to a lien and under Government Code Section 38773.6, the expense of abatement shall constitute a special assessment against a parcel of land owned by the person and if the person is a minor, by the minor or by the minor's parent or guardian. The assessment shall be collected as provided for in Government Code Section 38773.6.

H. In addition to any other remedy provided herein or available at law, expense of abatement under Government Code Section 38772 shall constitute a personal obligation against the person and if the person is a minor, the minor and the minor's parent or guardian.

(Ord. 1713 § 1, 1997)

This chapter authorizes only the removal of the graffiti itself, or if the graffiti cannot be removed cost effectively, the repair or replacement of the portion of the property that was defaced, and not the painting, repair, or replacement of other parts of the property that were not defaced.

(Ord. 1713 § 1, 1997)

The police department may promulgate procedures for preremoval preservation of sufficient evidence of the graffiti for criminal prosecutions or proceedings under Welfare and Institutions Code Section 602 pertaining to the person or persons who inscribed the graffiti or other material. These procedures shall be followed by the city prior to or during removal of graffiti.

(Ord. 1713 § 1, 1997)

Nothing in this chapter shall be deemed to prevent the city from commencing civil or criminal proceedings to abate a public nuisance or from pursuing any other means under applicable ordinances or state law in addition to or as alternatives to the proceedings set forth in this chapter. The remedies provided in this chapter are intended to supplement penalties under federal, state and local law, including, but not limited to, Penal Code Sections 594, 594.1, 594.6, 640.5 and 640.6 and Vehicle Code Section 13202.6.

(Ord. 1713 § 1, 1997)

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 section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Ord. 1713 § 1, 1997)