Porterville Municipal Code Art. II Graffiti

A. The city council hereby finds and determines that the writing, spraying, scratching, etching or otherwise affixing graffiti or other inscribed materials on public or privately owned real or personal property without the consent or permission of the owner thereof is a public nuisance and obnoxious, as well as injurious to the public health, safety and welfare, for the following reasons:

1. Such markings are often placed on said structures by gangs to indicate illicit control over certain locations or areas for purposes of criminal activity.

2. Such markings directly and indirectly encourage gang warfare, including drive-by shootings, and other acts of violence which result in injuries and fatalities to gang members and innocent bystanders, alike.

3. Such markings are destructive to publicly and privately owned property and cause depreciation in the value of said property and depreciation in the value of adjacent and surrounding properties as well.

4. Such markings result in blight and deterioration of property and business values in the community and lead to economic loss and the destruction of property in general.

B. The purpose and intent of the city council, through the adoption of this chapter, are to protect public and private property from acts of vandalism and defacement. It is the further intent of the city council, through the adoption of this chapter, to provide notice to all those who disregard the property rights of others, that the law enforcement agencies of the city will strictly enforce the law and vigorously prosecute and hold accountable those persons engaging in violations of this article. (Ord. 1638 § 1, 8-19-2003)

As used in this article:

CITY: The city of Porterville.

GRAFFITI: Is defined as, but not limited to, an unauthorized inscription, word, figure, design, writing, or picture which is marked, etched, scratched, drawn, painted, pasted or otherwise affixed upon any public property or upon any structure, wall, fence, sidewalk, sign, public utility box, or any structural component of any building, bridge, structure or any facility in public view to any person utilizing any public street in the city, including, but not limited to, any roadway, parkway, sidewalk, or alley, to the extent the same was not authorized in advance by the owner thereof, or despite advance authorization is otherwise deemed by the city council to be a public nuisance.

PERSON: A domestic or foreign corporation, an association, a syndicate, a joint stock corporation, a partnership of any kind, a club, business or common law trust, a society or an individual.

REMOVAL OF GRAFFITI: Includes the painting over of graffiti or the physical removal of graffiti by other means.

RESPONSIBLE ADULT: A parent, legal guardian, or person having legal responsibility for an unemancipated individual under the age of eighteen (18).

SALE: The transfer, in any manner or by any means whatsoever, of title to property for consideration or the serving, supplying, or furnishing for a consideration of any property. (Ord. 1638 § 1, 8-19-2003)

A. Writings Prohibited: No person shall place graffiti or other writings upon any public or privately owned tree, rock, or structure including, but not limited to, buildings, walls, fences, poles and signs, flood control channels, concrete, paving, etc., located within the city.

B. Allowing Graffiti To Remain On Property: No person owning or otherwise in control of any real property within the city shall permit or allow any graffiti to be placed upon or remain on any structure located on such property.

C. Declaration Of Nuisance: The city council declares and finds graffiti to be a nuisance subject to abatement according to the provisions and procedures herein contained and as authorized by California Government Code section 38773 et seq.

D. Right Of City To Remove:

1. Property Owner Responsible: Property owners or persons in control of the property are required to remove or paint over graffiti within twenty four (24) hours of the application of the graffiti. The city may, at its expense, remove or paint over graffiti twenty four (24) hours after posting notice on the property to remove or paint over the graffiti with regard to public structures or areas, or structures or areas that are visible from major city arterials. The city may, at its expense, remove or paint over graffiti in all other areas forty eight (48) hours after posting notice on the property to remove or paint over the graffiti. The city shall post a consent form, as described below, along with said notice and will make reasonable efforts to notify the owner or person in control of the property and obtain consent prior to or at the time of removal. City funds may be used to remove graffiti and other similar inscribed material from publicly or privately owned permanent structures located on publicly or privately owned real property within the city.

2. Use Of City Funds For Removal: Within the limits set forth in this section, use of city funds as authorized in this section is limited to the following cases:

a. Sufficient funds have been budgeted and remain unencumbered for such purpose.

b. The city manager or the designee of the city manager approves each proposed use of city funds for such purpose.

c. The written consent of the owner of or person responsible for the affected structures, public or private, is obtained in each instance, except when the owner or person responsible for the property refuses to consent or fails to consent pursuant to subsection D3 of this section. The consent shall be a form approved by the city attorney and shall:

(1) Authorize entry of city employees and contractors on the affected property to accomplish the removal of the material;

(2) Assign to the city any cause or causes of action which the owner may have against any person or persons who defaced the property with graffiti; and

(3) Hold the city, its officers, employees and contractors harmless from all liability arising out of the entry on the property or the work of removing the material.

d. City funds shall be used only to remove the inscribed material itself and may not be used for painting or repairing of any more extensive area.

e. In any instance where the owner or person in control of the affected property ("responsible party") caused, materially contributed to, or voluntarily consented to the inscription, or in any case where the responsible party refuses to permit the city onto the premises in order to remove the material or fails to give consent within the time periods specified, which results in action by the city under section 18-39 of this article, the responsible party may be held financially responsible pursuant to subsection D3 of this section.

3. Right Of Entry On Private Property; Failure To Obtain Owner/Person In Control's Consent: If a responsible party fails to remove graffiti within the time herein specified and fails to respond to the city's notice and request for consent, the city may immediately commence abatement of the graffiti and may recover its costs for the abatement from the person or persons responsible for applying the graffiti, and if that person or persons are minors, from the responsible adult or adults, under authority granted by these regulations and California law which authority includes the recovery of all costs incurred by the city in abating graffiti, including attorney fees, and recordation of a lien as to property. If the city shall have requested consent to remove or paint over graffiti and the owner or person responsible for the property shall have refused consent for entry on terms acceptable to the city consistent with the terms of this section, the city may proceed with nuisance abatement proceedings as against the owner pursuant to section 18-39 of this article.

E. Ease Of Removal Provisions:

1. Conditions Of Encroachment Permits: Encroachment permits issued by the city may, among other items, be conditioned on: a) the permittee applying an antigraffiti material to the encroaching object or structure of a type and nature which is acceptable to the city manager, or his or her designee; b) the immediate removal by the permittee of any graffiti; c) the right of the city to immediately remove graffiti or to paint the encroaching object or structure; d) the permittee providing the city with sufficient matching paint and/or antigraffiti material on demand for use in the painting of the encroaching object or structure containing the graffiti.

2. Conditions On Discretionary Approvals: In imposing conditions upon conditional use permits, variances, building permits where discretionary approvals are permitted, or other similar land use entitlements or development or design applications, the city may impose graffiti removal requirements or any or all of the following conditions, or other similar or related conditions:

a. Use Of Antigraffiti Material: Applicant may be required to apply an antigraffiti material and provide a landscape design of a type and nature which is acceptable to the city manager, or his or her designee, to such of the publicly viewable surfaces to be constructed on the site deemed by the city manager, or designee, to be likely to attract graffiti ("graffiti attracting surfaces");

b. Right Of Access To Remove Graffiti: Applicant shall grant, in writing, the right of entry over and access to such parcels, upon twenty four (24) hours' posted notice concerning public structures/areas or structures/areas visible from major city arterials, or upon forty eight (48) hours' posted notice for all other structures/areas, by authorized city employees or agents, for the purpose of removing or painting over graffiti on graffiti attracting surfaces previously designated by the city manager, or designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land.

c. Supply City With Graffiti Removal Material: Applicant, and any and all successors in interest, shall, for a specified period of years after approval, provide the city with sufficient matching paint and/or antigraffiti material on demand for use in the painting over or removal of designated graffiti attracting surfaces;

d. Owner To Immediately Remove Graffiti: Persons applying for subdivision maps shall, as a part of any conditions, covenants and restrictions, covenant, which covenant shall run with the land, in a form satisfactory to the city, that the owners of the lots immediately remove any graffiti placed on publicly viewable trees, rocks and structures thereon to the city's satisfaction. (Ord. 1638 § 1, 8-19-2003)

A. When the city removes graffiti pursuant to this article, the expense of abatement and related administrative costs shall be, to the fullest extent permitted by law, an expense of the minor or other person creating, causing, or committing the graffiti, and the expense of abating the graffiti shall be a lien against the property of the minor, responsible adult or other person and a personal obligation against the minor, responsible adult or other person.

B. Notwithstanding the terms of subsection A of this section, the responsible adult shall be jointly and severally liable with the minor who has created, caused or committed a graffiti nuisance. As such, the city may recover the costs incurred by the city in abating the nuisance, resulting from the defacement by a minor of the property of another by graffiti or any other inscribed material, by placing a lien against the property of the responsible adult, and by making the expense a personal obligation of the responsible adult.

C. Notwithstanding any other provision of law, the names and addresses of the responsible adult, if known, shall be reported by the probation officer to the chief of police for the purpose of enforcement of this section.

D. As used in this section, the following terms have the following meanings:

1. "Expense of abatement and related administrative costs" includes, but is not limited to, court costs, attorney fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, costs of administering and monitoring the participation of a defendant and his or her parents or guardians in a graffiti abatement program, and the law enforcement costs incurred by the city in identifying and apprehending the minor or other person.

2. For the purposes of this section and the following sections, "minor" or "other person" means a minor or other person who has confessed to, admitted to, or pled guilty or nolo contendere to a violation of section 594, 594.3, 640.3, 640.6, or 640.7 of the California Penal Code, or a minor convicted by final judgment of a violation of section 594, 594.3, 640.5, 640.6, 640.7 of the Penal Code, or a minor declared a ward of the juvenile court pursuant to section 602 of the California Welfare and Institutions code by reason on the commission of an act prohibited by above sections of the Penal Code. (Ord. 1638 § 1, 8-19-2003)

A. The purpose of this section is to establish a procedure to collect abatement and related administrative costs incurred in the summary abatement of any nuisance resulting from the defacement by a minor or other person of the property of another by graffiti or any other inscribed material.

B. Notice shall be given to the minor or other person, prior to the recordation of a lien on the parcel of land owned by the minor or other person. Such notice shall be served in the same manner as a summons in a civil action pursuant to California law.

C. Notice shall be given to the responsible adult prior to the recordation of a lien on the parcel of land owned by the responsible adult as described above.

D. If the minor or other person, or responsible adult, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the minor or other person, or responsible adult in a conspicuous place, for a period of ten (10) days. The notice shall also be published pursuant to Government Code section 6062 in a newspaper of general circulation that is published in the county in which the property is located.

E. A graffiti nuisance abatement lien shall be recorded in the county recorder's office in the county in which the parcel of land is located. From the date of recording, the lien shall have the force, effect, and priority of a judgment lien.

F. A graffiti nuisance abatement lien authorized by this section shall specify the amount of the lien; the name of the agency on whose behalf the lien is imposed; the date of the abatement order; the street address, legal description, and the 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.

G. If the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in this section shall be recorded by the city. A graffiti nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.

H. A graffiti nuisance abatement lien may be satisfied through foreclosure in an action brought by the city.

I. The city may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

J. Costs that are subject to a lien under this section include, but are not limited to, court costs, attorney fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, costs of administering and monitoring the participation of a defendant and his or her parents or guardians in a graffiti abatement program, and the law enforcement costs incurred by the city in identifying and apprehending the minor or other person. (Ord. 1638 § 1, 8-19-2003)

A. The purpose of this section is to establish, as an alternative to the procedure established in section 18-35 of this article, a procedure to collect abatement and related administrative costs incurred in the summary abatement of any nuisance resulting from the defacement by a minor or other person of the property of another by graffiti or any other inscribed material by making the abatement and related administrative costs a special assessment against a parcel of land owned by the minor or other person or owned by the responsible adult.

B. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes.

C. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment.

D. 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 attaches 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.

E. Notices or instruments relating to the abatement proceeding or special assessment may be recorded.

F. Upon entry of a second or subsequent civil or criminal judgment within a two (2) year period finding that an owner of property or a minor or other person is responsible for a graffiti related nuisance or crime, the court may order that person to pay treble the costs of the abatement. (Ord. 1638 § 1, 8-19-2003)

In addition to all other remedies specified in this article, the city is entitled to bring a civil action against the minor or other person and each responsible adult. To the fullest extent permitted by law, the minor or other person and each responsible adult shall be personally liable for any and all costs to the city, any person or business incurred in connection with the removal of graffiti caused by the minor or other person, and for all law enforcement costs, city staff costs, attorney fees and court costs incurred in connection with the civil prosecution of any claim for damages or reimbursement. (Ord. 1638 § 1, 8-19-2003)

A. Violation A Misdemeanor: Any person violating the provisions of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for a period not exceeding six (6) months, or by both such fine and imprisonment, and by the performance of community service to the maximum extent permitted by law.

B. Charge May Be Reduced: Notwithstanding the classification of a violation of this article or any section thereof as a misdemeanor, at the time an action is commenced to enforce the provisions of this article, the trial court, upon recommendation of the prosecuting attorney, may reduce the charged offense from a misdemeanor to an infraction.

C. Additional Penalties Available: Subsection A of this section does not preclude the availability of all additional penalties available permitted by law, including, but not limited to, those acts of graffiti vandalism punishable as felonies under state law. (Ord. 1638 § 1, 8-19-2003)

A. In addition to the remedies in this article, a violation of any of the provisions of this article shall constitute a nuisance and may be abated by the city through civil process by means of restraining order, preliminary or permanent injunction, or in any manner provided by law or this code for the abatement of such nuisance. Should the city abate said nuisance in this manner, the city shall be entitled to recover such costs, including to the fullest extent permitted by law, attorney fees and court costs, from the owner of the property upon which said nuisance exists.

B. A notice of public nuisance may be served upon the owner of the affected property, requiring such nuisance to be abated. The property owner shall remove said nuisance within thirty (30) days of the service of the notice. The notice to the property owner will serve as notification of the location and description of the graffiti and the property owner's obligation to remove said graffiti. The notice may be served by personal service on the owner or by certified mail addressed to the owner's last known address, and shall additionally be posted on the property.

C. In the event the owner fails to abate the nuisance, the city or its private contractor is expressly authorized to enter upon the premises for such purposes. The city may direct the removal of graffiti from the property with the cost of work performed billed to the property owner who may select the option of direct payment of such costs. If the owner fails to make direct payment, the abatement costs may be made a lien or treated as a special assessment as described in this article.

D. A property owner shall have fifteen (15) days from the date of mailing by the city of the bill for the cost of removal of graffiti from the owner's property in which to appeal any charge or assessment for graffiti removal. Said appeal must be submitted in writing to the city clerk. Upon receipt of the written appeal, the city clerk shall schedule a hearing before the city council. The city manager or his or her designee shall submit a written report to the city council, with a copy to the appealing party, setting forth justifications for the description of the work done and the cost thereof. The city clerk shall notify the party appealing of the date and time of the hearing at least ten (10) days in advance of the hearing.

At the time and place of such hearing, the city manager or his or her designee shall present the report and the appealing party shall present all information in opposition to the calculation of the removal. At the conclusion of the hearing, the city council shall determine what cost, if any, is to be imposed upon the appealing party. (Ord. 1638 § 1, 8-19-2003)

It is unlawful for any person or firm to sell or furnish to any minor, and for any minor to purchase, any aerosol or pressurized container of paint and/or any wide tipped marker pens exceeding four millimeters (4 mm) in width, containing anything other than a solution which can be removed with water when dry, capable of defacing property. (Ord. 1638 § 1, 8-19-2003)

It is unlawful for any individual under the age of eighteen (18) years, who is in a public place or on private property, without the consent of the owner, tenant or operator thereon, and who is not accompanied by a responsible adult, to possess: a) an aerosol or pressurized container of paint, or b) wide tipped marker pens with tips exceeding four millimeters (4 mm) in width which contain solutions other than that which can be removed with water when dry. Such violation shall constitute an infraction. (Ord. 1638 § 1, 8-19-2003)

Any minor or other person found guilty or pleading nolo contendere to a violation or violations described in subsection 18-34D2 of this article shall pay restitution to the property owner, in addition to authorized penalties. If the violator is a minor, the responsible adult shall be responsible for payment of restitution. In lieu, in whole or in part, of requesting prosecution of a petition to declare a minor to be a ward of the court under Welfare and Institutions Code section 602, a violation of this article will result in said minor being ordered to perform community service with the following requirements: a) the minor shall perform not less than twenty four (24) hours; b) at least one of the custodial parents, or if none, the responsible adults, shall be in attendance for the maximum amount of time allowed by law for the assigned community service; and c) the entire period of community service shall be performed under the supervision of a community service provider approved by the Tulare County probation department. (Ord. 1638 § 1, 8-19-2003)

Nothing in the foregoing sections shall be deemed to prevent the city from commencing a civil or criminal proceeding to abate a public nuisance under applicable California Civil or Penal Code provisions as an alternative to the proceedings set forth herein. The city shall be entitled to utilize any and all remedies permitted by law with regard to the violations specified in this article. (Ord. 1638 § 1, 8-19-2003)

In the event it is necessary pursuant to notice from the proper legal authorities for sufficient evidence of graffiti to be preserved prior to its removal, the city shall make every effort to have its evidentiary use expedited in order to permit abatement of the graffiti as quickly as possible. For the time period that any portion of the graffiti will be required by the proper legal authorities to remain on the property for this purpose, the property owner shall not be held responsible for maintaining a public nuisance. (Ord. 1638 § 1, 8-19-2003)

It is declared to be the intention of the city council that the subsections, paragraphs, sentences, clauses and phrases of this article form an interrelated program for dealing with the problem of graffiti and vandalism within the city, but that such subsections, paragraphs, sentences, clauses and phrases are distinct and severable and, in the event that any subsections, paragraphs, clauses and phrases are declared unconstitutional, invalid or unenforceable by any court of competent jurisdiction, such unconstitutionality, invalidity or unenforceability shall not affect any of the remaining subsections, paragraphs, clauses or phrases of this article. (Ord. 1638 § 1, 8-19-2003)