Reedley Municipal Code Ch. 12 Graffiti Abatement

The city council of the city of Reedley finds and declares that graffiti on public or private property and real or personal property is a public nuisance tending to reduce the value of such property, promoting blight and deterioration of surrounding property, and inviting further vandalism, resulting in loss of pride in affected neighborhoods and loss of business to neighboring commercial enterprises. The city council also finds and declares that there is a need for effective graffiti abatement and enforcement of graffiti violations in the city of Reedley. (Ord. 2016-003, 8-23-2016)

For purposes of this chapter, the following definitions shall apply:

AEROSOL CONTAINER: Any aerosol based container which is capable of spraying indelible paint, ink, dye, or other substance capable of defacing property.

ETCHING MATERIAL: Any etching tool, chemical, paste, or similar material which is capable of being used to etch glass.

EXPENSE OF ABATEMENT: 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 responsible person and his/her parent(s)/guardian(s) in a graffiti abatement program, and the law enforcement costs incurred by the city of Reedley in identifying and apprehending the responsible person(s) or otherwise the cause of contributing or aiding and abetting in the placement of graffiti or other inscribed material.

FELT TIP MARKER: Any indelible marker or similar device with a tip containing ink, dye, or other substance that is not water soluble and, which when used or applied to a surface, is capable of resulting in a mark at least one-eighth (1/8) of an inch wide at its widest point.

GRAFFITI IMPLEMENT: Any felt tip marker, etching material, paint stick, or aerosol container which contains paint, ink, dye, or any other substance that is not water soluble and is capable of resulting in the placement of graffiti upon any surface or substance, including, but not limited to, glass, metal, concrete, wood, or plastic.

GRAFFITI OR INSCRIBED MATERIAL: Any inscription, word(s), figure(s), mark(s), or design(s) whether written, marked, etched, scratched, drawn, or painted on any real or personal public or private property in the city without the permission of the owner and which is visible from a public right of way or any neighboring property.

MINOR: A person under eighteen (18) years of age.

OWNER: The owner of record of the property as set forth in the records of the county tax assessor.

PAINT STICK: A device containing a solid form of paint, chalk, epoxy, or other similar substance capable of being applied to a surface by pressure, and upon application, leaving a mark at least one-eighth (1/8) of an inch in width, visible from a distance of twenty feet (20'), and not water soluble.

RESPONSIBLE PERSON: Any person violating this chapter or any person who has confessed to, admitted to or pled nolo contendere to a violation of section 594, 594.3, 640.5, 640.6 or 640.7 of the Penal Code, or a person convicted by final judgment of a violation of section 594, 594.3, 640.5 or 640.7 of the Penal Code, or a minor declared a ward of the juvenile court pursuant to section 602 of the Welfare And Institutions Code by reason of the commission of an act prohibited by section 594, 594.3, 640.5, 640.6 or 640.7 of the Penal Code. (Ord. 2016-003, 8-23-2016)

It is unlawful for any person, regardless of age, to apply graffiti to any wall, rock, street, bridge, building, fence, gate, tree, utility box or pole, bench, sign, or other real or personal property within the city. (Ord. 2016-003, 8-23-2016)

Graffiti on public or private property, either real or personal, constitutes a public nuisance. This chapter is not the exclusive regulation of graffiti as a nuisance within the city; it supplements and is in addition to other provisions of this code and any other applicable law. (Ord. 2016-003, 8-23-2016)

A. Display Requirements: It shall be unlawful for any person, firm, corporation, organization, or business engaged in a commercial enterprise within the city of Reedley to store, stock, keep, or display for sale, trade, give away, or exchange any graffiti implement except in an area from which access by the public is securely precluded without employee assistance. Acceptable methods for displaying graffiti implements for sale shall be by containment in: 1) a completely enclosed cabinet or other storage device which shall, at all times except during access by authorized representatives, remain securely locked; or 2) an enclosed area behind a sales or service counter from which the public is precluded from entry; or 3) a completely enclosed cabinet or similar enclosed storage device which is within thirty feet (30') and in plain view of a permanently staffed counter or station. Nothing in this chapter shall relieve such person or business entity from complying at all times with the requirements of California Penal Code section 594.1(c) by posting signs as described therein.

B. Storage Requirements: No person or business engaged in the business of selling, providing or trading graffiti implements shall store any graffiti implement except in an area inaccessible to the public. (Ord. 2016-003, 8-23-2016)

A. It is unlawful for any person, firm, corporation, organization, or business engaged in a commercial enterprise, except a parent or legal guardian as to their own child or ward, to sell, give away, trade, exchange, or in any way furnish to another person, who is in fact under the age of eighteen (18) years, any graffiti implement without first obtaining bona fide evidence of majority and identity. For the purposes of this section "bona fide evidence of majority and identity" is any document evidencing the age and identity of an individual that has been issued by a federal, state, or local government entity, and includes, but is not limited to, a driver's license, a registration certificate issued under the federal selective service act, or an identification card issued to a member of the armed forces.

B. It is unlawful for any person under the age of eighteen (18) years to purchase any graffiti implement.

C. It is unlawful for any person regardless of age, to possess, with the intent to deface any property, any graffiti implement, any pressurized container designed to propel liquid, any spray activator capable of being attached to an aerosol paint container, or any etching tool as defined by California Penal Code section 594.2(a) or any other device capable of scarring glass, metal, concrete or wood, while on a public highway, street, alley, or way, or any other public place, regardless of whether that such person is or is not in any automobile, vehicle, or other conveyance. (Ord. 2016-003, 8-23-2016)

Pursuant to Civil Code section 1714.1(b), where graffiti is applied by a minor, the parent(s) or legal guardian(s) of the minor shall be jointly and severally liable for the payment of civil damages resulting from the minor's misconduct in an amount not to exceed twenty five thousand dollars ($25,000.00) for each offense. If a minor is personally unable to pay an administrative fine for acts prohibited by this chapter, the parent(s) or guardian(s) in custody or control of said minor shall be liable for the payment of the fine. The city manager may waive payment of the fine or any part thereof by the parent(s) or guardian(s) upon a finding of good cause. (Ord. 2016-003, 8-23-2016)

Graffiti shall be removed or completely covered in a manner that renders it inconspicuous. When graffiti is painted over, the color used to paint over it shall reasonably match the original color of the surface, or the surface shall be completely repainted with a new color that is aesthetically compatible with existing colors and architecture. The removal shall not leave shadows and shall not follow the pattern of the graffiti such that letters or similar shapes remain apparent on the surface after graffiti markings have been removed. If the area is heavily covered with graffiti, the entire surface shall be repainted.

It is unlawful for any owner of real property located in the city, and for any tenant, occupant, or user of real property therein, to maintain, permit, or allow graffiti to exist thereon, for longer than forty eight (48) hours. (Ord. 2016-003, 8-23-2016)

A. Common Utility Colors And Paint Type: Any gas, telephone, water, sewer, cable, and other utilities operating in the city, other than an electric utility, shall paint their above surface metal fixtures, that are installed after the effective date hereof, with a uniform paint type and color as directed by the city manager or designee, unless otherwise authorized by the city.

B. Land Use Entitlement Conditions: In approving subdivision maps, conditional use permits, variances, building permits, or other similar land use entitlement or development or design applications, the city may impose one or all of the following conditions, or other similar or related conditions:

1. Use of antigraffiti materials on surfaces exposed to public view of a type and nature that is acceptable to the city manager or designee.

2. Use of landscaping to screen or provide a barrier to surfaces that may be prone to graffiti.

3. Right of access by city to remove graffiti.

4. Applicants, permittees, and all successors in interest shall provide city with sufficient matching paint and/or antigraffiti material on demand for use in painting over or removal of graffiti.

5. Applicants, permittees, and all persons applying for subdivision maps shall, as part of any conditions, covenants and restrictions, covenant that the owners of the lots shall remove any graffiti in accordance with the requirements of this chapter.

C. Encroachment Permit Conditions: All encroachment permits issued by the city may, among other things, be conditioned on any one or more of the following:

1. Use of antigraffiti materials on surfaces exposed to public view of a type and nature that is acceptable to the city manager or designee.

2. Use of landscaping to screen or provide a barrier to the encroaching object.

3. The right of the city to remove the graffiti or to paint the encroaching object or structure.

4. Permittee shall provide city with sufficient matching paint and/or antigraffiti material on demand for use in painting over or removal of graffiti on the encroaching object or structure.

5. Permittee shall remove all graffiti in accordance with the requirements of this chapter.

D. Community Education: The city manager or designee may conduct regular programs to provide community education regarding the prevention of graffiti in coordination with local businesses. (Ord. 2016-003, 8-23-2016)

A. Pursuant to Government Code section 53069.3, the city is hereby authorized to use city funds to remove graffiti or other inscribed material from publicly or privately owned real or personal property located within the city and to replace or repair public or privately owned property within the city that has been defaced with graffiti or other inscribed material that cannot be removed cost effectively.

B. The city may use city funds only for the removal of the graffiti or other inscribed material itself, or, if the graffiti or other inscribed material 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.

C. The removal, repair, or replacement may be performed, in the case of publicly owned real or personal property, only after securing the consent of the public entity having jurisdiction over the property, and in the case of privately owned real or personal property, only after securing the consent of the owner or possessor. (Ord. 2016-003, 8-23-2016)

A. Recovery Of Abatement Costs: Pursuant to Government Code section 38772(a) each responsible person shall be responsible to the city for the expense of abatement. The city may seek to recover the expense of abatement by any means authorized by law, including, but not limited to, imposing a special assessment against property owned by the responsible person in accordance with the procedures set forth in section 5-12-13 of this chapter.

B. Parents Liable For Expense Of Abatement: Pursuant to Government Code section 38772(b) a minor and the parent(s) or guardian(s) having custody and control of said minor are jointly and severally liable to the city for the expense of abatement. The expense of abatement may become a special assessment against the property owned by the minor and/or the property owned by the parent(s) or guardian(s) having custody and control of the minor. The procedures set forth in section 5-12-13 of this chapter shall be followed for the imposition of a special assessment lien.

C. Recovery Of Damages: Alternatively, the city may seek recovery of damages, including the expense of abatement, pursuant to Civil Code section 1714.1(b), jointly and severally against the parent(s) or guardian having custody and control of a minor whose act of wilful misconduct resulted in the defacement of property of another with paint or similar substance.

D. Preservation Of Evidence: The police department may promulgate procedures for the preremoval preservation of sufficient evidence of the graffiti or other inscribed material for criminal prosecution or proceedings. Said procedures shall be followed by the city prior to or during removal of the graffiti or other inscribed material. (Ord. 2016-003, 8-23-2016)

A. Enforcement: A violation of this chapter is punishable as set forth below; provided, however, nothing in this chapter precludes the city from using any other available method to enforce the provisions of this chapter or other provisions of this code. The procedures set forth in this chapter are not exclusive and nothing contained herein shall be deemed to preclude the city from initiating any civil or criminal action or from pursuing any available remedy.

B. Alternative Penalties Available: Whenever deemed appropriate by the police chief or designee, the following alternative penalties may be utilized upon conviction:

1. Performance of not less than twenty (20) hours and not more than one hundred (100) hours of community service. Community service includes graffiti removal service.

2. At least one of the custodial parents, or if none, at least one of the custodial guardians, shall be in attendance with the defendant at least fifty percent (50%) of the period of assigned community service.

3. That the defendant personally clean up, repair, or replace the damaged property.

4. The entire period of community service shall be performed under the supervision of a community service provider approved by the police chief or designee.

5. Any other police diversion program approved by the police chief or designee, including, but not limited to, restorative justice. (Ord. 2016-003, 8-23-2016)

A. Application: This section and the imposition of a special assessment shall apply to any responsible person including a minor, and the parent(s) or legal guardian(s) having custody and control of the minor. For purposes of this section the terms "graffiti", "expense of abatement", "minor", and "responsible person" have the same meaning as specified in section 5-12-2 of this chapter.

B. Account Of Abatement Costs: The city shall keep an itemized account of the expense of abatement incurred by the city in the abatement of graffiti pursuant to section 5-12-8 of this chapter. Upon completion of the abatement work, the city shall prepare a billing statement which:

1. Specifies the work done, the itemized costs of the work for each property from which the graffiti was abated, including direct and indirect costs.

2. Describes the real property from which the graffiti was abated.

3. Includes the names and addresses of the responsible person(s) for the expense of abatement, including the names and addresses of the parent(s)/guardian(s) of the minor.

4. Advises those named in the billing statement that failure to pay the expense of abatement within sixty (60) days of its mailing may result in a special assessment, in the amount stated in the billing statement, against any real property owned by the minor or his/her parent(s)/guardian(s).

5. Advises that each person named in the billing statement shall be jointly and severally liable for the expense of abatement and the amount of such costs shall be a debt owed to the city.

6. Advises that any objection to the billing statement, including the amount billed or the imposition of a special assessment must be raised prior to the expiration of sixty (60) days from the date the billing statement is mailed, and identifies the city department wherein the objection is to be raised.

The billing statement shall be mailed by regular first class mail to the responsible person for the graffiti and to the parent(s)/guardian(s) of any minor who is a responsible person if the address of said parent(s)/guardian(s) is known. It shall be presumed that a billing statement correctly addressed and properly mailed has been received in the ordinary course of mail.

C. Objection To Billing Statement: Upon receipt of any timely objection to a billing statement, the city shall schedule an assessment hearing before the city manager or designee to hear any objections and determine the appropriateness of the billing statement and approve imposition of the special assessment. Notice of the date, time and place of the assessment hearing shall be provided to the party requesting the hearing at least fifteen (15) days prior to the hearing. Upon requesting a hearing, the city shall stay all efforts to collect the amount billed, including the imposition of an assessment, until final determination of the hearing.

D. Procedure For Special Assessment:

1. When any charges levied pursuant to this chapter remain unpaid for a period of sixty (60) days or more after the date on which they were mailed, except when an objection is timely made and hearing scheduled, the city, in its discretion, may make the expense of abatement a special assessment against a parcel of land owned by the minor or the parent/guardian having custody of the minor. If an objection to the billing statement is timely made and a hearing requested, the city may, in its discretion, after a determination approving a special assessment has become final, make the expense of abatement a special assessment against a parcel of land owned by the responsible person or the parent(s) or guardian(s) having custody and control of the minor if the responsible person is a minor.

2. At the time the assessment is imposed, the city must notify the property owner affected by the special assessment by certified mail. Such notice shall substantially comply with the following form:

NOTICE OF LIEN

Pursuant to the authority vested in the City of Reedley by the provisions of Title 5, Chapter 12 of the Reedley Municipal Code and Government Code Sections 38772 and 53069.3, the City did on or about the day of , 20 , cause the abatement of graffiti on public or private, real or personal property. The responsible person, minor, or the minor's parent(s) or guardian(s) if the responsible person is a minor, is the record owner of the real property described herein, and the City of Reedley hereby imposes a special assessment upon the real property hereinafter described, in the amount of $ , pursuant to Section 5-12-13 of the Reedley Municipal Code and Government Code Section 38773.6 for the expense of abatement. The same has not been paid nor any part thereof, and the City of Reedley does hereby claim a lien on said real property for the expense of abatement in the amount of said special assessment, and the same shall be a lien upon said real property until the sum has been paid in full and discharged of record. The real property hereinafter described may be sold after three (3) years by the tax collector for unpaid delinquent assessments.

The real property hereinafter described, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Reedley, County of Fresno, State of California, and particularly described as follows:

(DESCRIPTION OF PROPERTY)

Dated: This day of , 20

CITY CLERK

3. Immediately upon the recording of the notice of lien the assessment shall constitute a lien on the real property assessed. Such lien shall, for all purposes, be upon a parity with the lien of state, county and city taxes.

4. The notice of lien shall also be delivered to the auditor of Fresno County, who shall enter the amount thereof on the county assessment book opposite the description of the particular property and the amount shall 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 procedures and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the abatement and related administrative costs relates 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 be transferred to the unsecured roll for collection. (Ord. 2016-003, 8-23-2016)

If any section, subsection, sentence, phrase, clause or portion of this chapter is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The city council hereby declares that it would have adopted this chapter and each section, subsection, sentence, phrase, clause and portion hereof irrespective of the fact that any one or more sections, subsections, sentences, phrases, or clauses be declared invalid. (Ord. 2016-003, 8-23-2016)