Port Hueneme Municipal Code § 3427.314 Failure to remove graffiti upon notice

This Part is adopted in accordance with California Constitution Article XI, § 7 and Article I, § 1.1 of the City Charter; Government Code §§ 38771-38773.7, 53069.3, including any successor statutes; and Civil Procedure Code § 731, including any successor statutes, for the purposes of identifying graffiti as a public nuisance; authorizing abatement of graffiti; and imposing criminal and civil penalties upon persons for causing or permitting graffiti. Adopting this Part is a municipal affair and will protect public health, safety, and welfare by ensuring that graffiti is prohibited; providing for its prompt removal; and imposing criminal and civil penalties upon persons permitting graffiti to occur. Nothing contained in this Part is intended to, nor will it, preclude the City from pursuing any other available civil or criminal remedies concurrently or in addition to the proceedings established by this Part to enforce this Code.

(Ord. No. 692, § 2, 6-15-09)

The City Council finds as follows:

A. Graffiti on either public or private property, results in blight, decreases property values and deprives surrounding residents and owners of the right to comfortable enjoyment of life and property.

B. Graffiti is obnoxious, constitutes a public nuisance, and is a threat to public safety which must be abated to prevent its proliferation.

C. Graffiti must be removed as quickly as possible to minimize harm to persons and property in the community.

D. This Part of PHMC Chapter 4 is intended to be complementary to, and not in conflict with, Penal Code § 594, which provides that any person who maliciously defaces property is guilty of vandalism, and Penal Code § 594.1, which provides that certain activities involving the possession, sale and use of aerosol paint containers are misdemeanors.

(Ord. No. 692, § 2, 6-15-09)

Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this Part:

A. "Aerosol Paint Container" means any aerosol container which is adapted or made for the purpose of spraying paint or other substances capable of defacing property.

B. "Felt Tip Marker" means any indelible marker or similar implement with a tip which at its broadest width is one-eighth-inch or greater, containing an ink that is not water-soluble.

C. "Glass Cutters" means any tools or instruments designed, or intended, to cut or etch glass surfaces.

D. "Graffiti" means any inscription, word, figure or design that is marked, etched, pasted, or otherwise placed on property without the prior approval of the property owner or person in lawful possession or control of the property.

E. "Graffiti Implement" means any implement capable of marking a surface to create graffiti including, without limitation, any aerosol paint container, paint stick, felt tip marker, marking pen, gum label, marking instrument, drill bit, grinding stone, scribe, glass cutter, or etching tool, or other implements capable of marking or scarring glass, metal, concrete or wood.

F. "Graffiti Removal Costs" means all costs that would be considered abatement costs in the context of a nuisance abatement proceeding pursuant to this chapter. In addition, such costs expressly include, without limitation, costs of removal of graffiti or other material, costs of repair and replacement of the defaced property, all city staff time, costs of the police investigation, attorney time and fees, and any court costs incurred.

G. "Gum Label" means any sheet of paper, fabric, plastic or other substance with an adhesive backing which, when placed on a surface, is not easily removed.

H. "Hearing Officer" means City Manager or designee.

I. "Incidental expenses" include, without limitation, actual expenses, city administrative costs and other costs of the city of all previous code enforcement efforts, the preparation of the abatement work specifications, contracts, and staff time in inspecting the work, as well as the costs of printing, posting and mailings required by this Part.

J. "Minor" means, except as otherwise provided, a person under eighteen (18) years of age.

K. "Paint or Graffiti Stick" means a device containing a solid form of 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-eighth of an inch in width, visible from a distance of twenty (20) feet, and not water-soluble.

L. "Responsible person" means any person or persons creating, causing, committing or maintaining any public nuisance as defined by this code including, without limitation, any person owning, leasing, occupying or having charge or possession of real property and any parent or legal guardian of a minor creating graffiti.

M. "Self-service merchandising" means open display of graffiti implements to which the public has access without the intervention of any employee.

N. "Spray Actuator" means an object, such as a spray tip, nozzle, or button, which is capable of being attached to an aerosol paint container for the purpose of spraying the substance contained therein.

O. "Vendor-assisted" means only an employee has access to the graffiti implement and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

(Ord. No. 692, § 2, 6-15-09)

The City Manager, or designee, is authorized to abate graffiti in the manner provided by this Part.

(Ord. No. 692, § 2, 6-15-09)

It is unlawful for any person to possess any graffiti implement while on public or private property or to mark, apply, or etch graffiti on any structure located on public or private real property within the city. Any law enforcement officer who observes a violation of this section may take immediate possession of the graffiti implements.

(Ord. No. 692, § 2, 6-15-09)

It is unlawful for any minor to possess any graffiti implement while on public or private property without the consent of the property owner, or the person in lawful possession or control of the property. Any law enforcement officer who observes a violation of this section may take immediate possession of the graffiti implements.

(Ord. No. 692, § 2, 6-15-09)

Except as may be authorized by the City Manager, or designee, no person may possess any graffiti implement while on any property owned or operated by the city.

(Ord. No. 692, § 2, 6-15-09)

It is unlawful for any person to possess any graffiti implement for the purpose of defacing, marking, or damaging any public or private property without the express consent of the property owner or the person in lawful possession or control of the property.

(Ord. No. 692, § 2, 6-15-09)

Any parent or other legal guardian of a minor is personally liable for any and all graffiti removal costs associated with graffiti caused by the minor. This section does not limit the amount of recovery against the parent or other legal guardian for their own common law negligence.

(Ord. No. 692, § 2, 6-15-09)

A. It is unlawful for any person to sell, give, or otherwise furnish any graffiti implement to any minor without the consent of the minor's parent or legal guardian. 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 is a defense to any criminal prosecution.

B. It is unlawful for any person to sell, permit to be sold, offer for sale, or display for sale any graffiti implement by means of self-service merchandising or by means other than vendor-assisted sales.

C. In addition to the sign required by Penal Code § 594.1(c), persons selling, allowing to be sold, offering for sale, or displaying for sale any graffiti implement must post a sign with lettering at least three-eighths-inch high which states as follows:

"WARNING: IT IS UNLAWFUL TO SELL OR DISTRIBUTE AEROSOL PAINT, PAINT STICKS OR BROAD-TIPPED MARKERS TO ANY MINOR OR FOR ANY MINOR TO POSSESS OR ATTEMPT TO PURCHASE SAME. IF YOU ARE OVER EIGHTEEN YEARS OLD, IT IS ILLEGAL FOR YOU TO PURCHASE AEROSOL PAINT, PAINT STICKS OR BROAD-TIPPED MARKERS FOR A MINOR IF YOU ARE NOT THAT PERSON'S PARENT OR GUARDIAN. VIOLATIONS ARE PUNISHABLE BY A FINE, IMPRISONMENT, OR BOTH."

(Ord. No. 692, § 2, 6-15-09)

Graffiti may be removed by any of the following methods:

A. Wherever the City Manager, or designee, determines that graffiti, as defined in this Part, is located on public or privately owned property within the city so as to be capable of being viewed by a person utilizing any public right-of-way in the city, the City Manager is authorized to provide for the removal of the graffiti upon the following conditions:

1. If the graffiti is located on property owned by the city, the City Manager, or designee, may immediately remove the graffiti by any practicable means.

2. If graffiti is located on property owned by a public entity, graffiti removal is authorized only after securing the consent of the public entity having jurisdiction over the property and such entity executes a release and waiver, approved as to form by the City Attorney, and agrees to an assumption of costs incurred by the city for the removal of the graffiti.

3. Except as provided below, where a structure is privately owned, the removal of graffiti may be authorized only after securing the consent of the owner and the owner having executed a release and waiver approved as to form by the City Attorney.

B. Graffiti located on privately owned structures or privately owned real property in the city and which can be viewed by a person utilizing any public right-of-way within the city may be removed by the city at the owner's expense as a public nuisance. This section applies under the following circumstances:

1. The private property owner persuaded, allowed or encouraged the graffiti problem;

2. The private property owner's consent cannot be obtained; or

3. The City Manager determines that the removal of graffiti or other inscribed material from a privately owned property exceeded three (3) occurrences per privately owned real property during one calendar year.

(Ord. No. 692, § 2, 6-15-09)

Whenever the City Manager, or designee, determines that graffiti is located on privately owned structures or privately owned real property in the city in violation of this Part, the City Manager, or designee, may abate such public nuisance in the manner set forth in this Chapter.

(Ord. No. 692, § 2, 6-15-09)

The costs of graffiti abatement may be recovered as set forth in this Part.

(Ord. No. 692, § 2, 6-15-09)

In addition to any graffiti removal costs incurred by the city for the abatement of graffiti from private property, failure to voluntarily abate graffiti after notification will result in the penalties set out in this Part.

(Ord. No. 692, § 2, 6-15-09)

A. If the City Manager, or designee, abates graffiti in accord with this Part, the city may recover the graffiti removal costs by making such costs a lien against the property of the minor creating, causing, or committing the nuisance. Further, such costs may be recovered against the property of the parent or guardian having custody or control of the minor up to and including the sum of $25,000.

B. For the purposes of this section, the terms "expense of abatement," "graffiti" and "minor" have the same meaning set forth in Government Code § 38772.

C. The cost recovery procedures against the property of a minor or a parent or guardian of the minor are the same as set forth in this Part.

D. The graffiti removal costs are also a personal obligation of the minor and his or her parent or legal guardian.

(Ord. No. 692, § 2, 6-15-09)

A. After the conviction of any person for violation of this Part, the city may petition the sentencing court to impose community service time, pursuant to Penal Code §§ 640.6 or 1203.1. The sentencing court may require the performance of community service within the city in addition to any monetary penalties imposed.

B. Any minor violating any provision of this Part or any state law pertaining to vandalism of property with a graffiti implement who is found to be a person described in Welfare and Institutions Code § 602 by reason of the commission of vandalism, may be required to perform community service time pursuant to Welfare and Institutions Code § 742.16. For any minor adjudicated guilty of vandalism, the city will petition the juvenile court and the court may, in addition to any other penalties imposed by the city, require the unemancipated minor to provide the necessary labor to clean up, repair, or replace defaced, damaged or destroyed property, or otherwise make restitution to the property owner.

C. If a minor is personally unable to pay any fine levied for violating any provision of this Part or is otherwise unable to make restitution for damages, the minor's parent or legal guardian are liable for payment of the fine or restitution. If the parent or legal guardian cannot make restitution, the sentencing court may waive payment of the fine or community service time by the parent or legal guardian upon finding good cause. If the sentencing court waives payment of the fine by the parent or legal guardian, the city will petition the sentencing court, and the court, at the court's option, may order the parent or legal guardian to provide the necessary labor, equal to the number of hours assigned to the minor adjudicated guilty of violating any provision of this Part, to clean up, repair, or replace property damaged by the unemancipated minor.

(Ord. No. 692, § 2, 6-15-09)

For each conviction of a person aged thirteen (13) to twenty-one (21) for violating this Part, or any state law pertaining to vandalism of property with a graffiti implement, the city may petition the sentencing court to suspend driving privileges or delay the issuance of driving privileges in accordance with Vehicle Code § 13202.6.

(Ord. No. 692, § 2, 6-15-09)

A. Any person who violates any provision of this Part for which no other penalty is otherwise provided is guilty of a misdemeanor.

B. Any person failing to remove graffiti within the prescribed time period is guilty of an infraction and may be punished with a fine of one hundred dollars ($100.00) for a first conviction, three hundred dollars ($300.00) for the second conviction, and five hundred dollars ($500.00) for each subsequent violation.

(Ord. No. 692, § 2, 6-15-09)

A. Lien. Pursuant to Government Code §§ 38773, 38773.1, and 38773.5, and any successor statutes, persons failing to abate a public nuisance as ordered pursuant to this Part, will be obligated to pay all city expenses of abating the nuisance and all administrative costs associated therewith. A nuisance abatement lien in favor of the city for such expenses of the city will be created and recorded, pursuant to this section, against the property on which the nuisance is maintained. The lien will specify the amount of the lien, the name of the city, the date of the abatement order, the street address, legal description and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel.

B. Notice of proposed recordings. Notice will be sent by certified mail at least ten (10) days before recording the lien, an itemized notice of the lien amount and proposed recording will be sent by certified mail to the property owner of record of the parcel of land on which the nuisance was abated by the city, based on the last equalized assessment roll or the supplemental roll, whichever is more current before recordation of the lien. The notice will be served in the same manner as a summons in a civil action in accordance with Code of Civil Procedure §§ 415.10 et seq. 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 ten (10) days, and publication thereof in a newspaper of general circulation published in the county in which the property is located.

C. Recording. The city's nuisance abatement lien will then be recorded in the Ventura County Recorder's Office, and from the date of recording, will have the force, effect, and priority of a judgment lien.

D. Special Assessment. The city's total costs described in this Part may also be collected as a special assessment against the lot or parcel on which the nuisance existed. After recordation of the nuisance abatement lien the city may provide a copy of the notice of proposed recordation, proof of service, and the recorded lien to the tax collector and the tax collector will add the described special assessment payments to the next regular tax bill levied against the respective lots or parcels and the amounts will be collected and subject to the same penalties and the same procedure under foreclosure and sale as in the case of tax delinquencies. However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance for value has been created and attached thereon, before the date on which the first installment of the taxes would become delinquent, then the cost of abatement will not result in a lien against the real property but instead will be transferred to the unsecured roll for collection.

E. Satisfaction. In the event that the lien or special assessment is discharged, released, or satisfied, either through payment or foreclosure, a notice of the discharge containing the information specified in the lien will be recorded by the city.

F. Fees. Any fees incurred by the city for processing, recording of the lien and providing notice to the property owner may be recovered by the city as part of its foreclosure action to enforce the lien.

(Ord. No. 692, § 2, 6-15-09)

Upon entry of a second or subsequent civil or criminal judgment within a two (2) year period finding that an owner of property is responsible for a condition that may be abated in accordance with this Part, except conditions abated pursuant to Health and Safety Code § 17980, the court may order the owner to pay treble the costs of the abatement.

(Ord. No. 692, § 2, 6-15-09)

A. Nothing in this Part will be deemed to prevent the City Attorney from:

1. Commencing a civil action in the superior court to enforce all or any of the provisions of any abatement order;

2. Commencing a civil action to abate a public nuisance as an alternative to or in conjunction with an administrative proceeding pursuant to this Part;

3. Filing a civil action to recover the amount of a confirmed accounting from an owner or occupant of the lot to which it relates; or

4. Filing a criminal action to enforce this Code.

B. Where a civil action is filed, if the court issues an order or a judgment which finds a public nuisance to exist, and orders or approves the abatement of the public nuisance, or where the court validates an accounting, the court will also award the city its actual costs of abatement, including, without limitation, reasonable attorneys' fees incurred by the city in such judicial proceeding.

(Ord. No. 692, § 2, 6-15-09)

A. The City Manager, or designee, is authorized to offer and pay a reward to any person who provides information leading to the apprehension and conviction of any person who willfully or maliciously places graffiti on any public or private property within the city. The City Council will establish the maximum amount available for rewards by minute action or resolution.

B. The City Manager, or designee, may determine the exact amount of the reward to be offered and paid in accordance with this section. City elected officials, appointed officials and employees are ineligible to receive such rewards.

(Ord. No. 692, § 2, 6-15-09)