Rialto Municipal Code Ch. 9.60 Regulation of the Sale of Indelible Ink Markers and Pressurized…

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Editor's note— Ord. No. 1497, § 1, adopted December 13, 2011, repealed the former Chapter 9.60, §§ 9.60.010—9.60.170, and § 2 of Ord. No. 1497 enacted a new Chapter 9.60 as set out herein. The former Chapter 9.60 pertained to similar subject matter and derived from Ord. No. 806; Ord. No. 1189, 1993; Ord. No. 1226, 1995 and Ord. No. 1234, 1995.

The ordinance codified in this chapter may, from time to time, be generally referred to as the "Anti-Graffiti Ordinance."

(Ord. No. 1497, § 2, 12-13-11)

The purpose of this chapter is to avoid the detrimental impacts on the public health, safety and welfare of the citizens of Rialto caused by such malicious vandalism and to prevent the further spread of graffiti.

(Ord. No. 1497, § 2, 12-13-11)

As used in this chapter or in any of the uniform codes made a part of it, unless otherwise apparent from the context, the following words and phrases shall be defined, as follows:

"Conviction" for purposes of this chapter, includes a finding by a judge of a juvenile court, a juvenile traffic hearing officer or referee of a juvenile court that a person has committed an offense.

"Deface" means the intentional altering of the physical appearance of property regardless of its nature.

"Evidence of Majority and Identity. "Bona fide evidence of majority and identity" means any document evidencing the age and identity of an individual which has been issued by a federal, state or local governmental entity, and includes, but is not strictly limited to, a motor vehicle operators license, a registration certificate issued under the Federal Selective Service Act, or an identification card issued to a member of the armed forces.

"Graffiti" means any form of unauthorized painting, writing, spraying, scratching, or by any other means of inscription, regardless of the content or nature of the material used in the commission of the act, which is affixed on any public or private real or personal property of others without their consent, and which causes the defacement, damage or destruction of such property.

"Indelible ink markers" means any writing instrument with a marking tip greater than one-fourth inch at its diameter which contains permanent and/or indelible ink or other similar substance.

"Posted" means a sign placed in a reasonable location or locations stating it is a misdemeanor to possess a "pressurized container" or "indelible ink marker" capable of defacing property in such public facility, park, playground, swimming pool, beach or recreational area without valid authorization.

"Pressurized container" means any can, bottle, spray device or other mechanism designed to propel liquid which contains ink, paint, dye or other similar substance which is applied under pressure, either through the use of aerosol devices, pump or similar propulsion devices, and which is capable of defacing property.

"Responsible adult" means a parent, guardian, or person having legal responsibility for an individual under the age of eighteen.

(Ord. No. 1497, § 2, 12-13-11)

The administration of the provisions of this chapter shall be by regularly salaried full-time employees of the city, except that the removal of any graffiti or parts thereof from public or private property may be made by any other person duly authorized by the city to conduct such removal.

(Ord. No. 1497, § 2, 12-13-11)

The city council finds and declares that the presence of graffiti on public and private property is a blighting factor which tends to create conditions that reduce property values, constitutes an attractive nuisance, is aesthetically detrimental to the community, and creates potential hazards to the health and safety of the citizens of this community; in that graffiti is a strong indication of the presence of vandals and even increased gang activity and may be used as a method of communication within and between gangs to the detriment of the public safety. Therefore, the presence of graffiti, whether on public or private property, is declared to constitute a public nuisance which may be abated in accordance with the provisions of this chapter.

(Ord. No. 1497, § 2, 12-13-11)

It is a misdemeanor for any person to affix graffiti to, or in any way deface, any real or personal property, either publicly or privately owned, except his or her own property.

(Ord. No. 1497, § 2, 12-13-11)

It is a misdemeanor for any person, firm, association or corporation, except a parent or legal guardian, to sell, offer to sell, cause to be sold, give or in any way furnish to another person, who is in fact under the age of eighteen years, any indelible ink markers capable of defacing property without first obtaining bona fide evidence of majority and identity.

(Ord. No. 1497, § 2, 12-13-11)

It is a misdemeanor for any person, firm, association or corporation, except a parent or legal guardian, to sell, offer to sell, cause to be sold, give or in any way furnish to another person, who is in fact under the age of eighteen years, any pressurized containers capable of defacing property without first obtaining bona fide evidence of majority and identity.

(Ord. No. 1497, § 2, 12-13-11)

Every person, firm, association or corporation, who owns, conducts, operates or manages a retail commercial establishment or otherwise engages in the sale of pressurized containers and/or indelible ink markers shall:

A. In addition to any warning required by state law, also shall post, in a conspicuous place, a sign, in letters at least three-eighths inches in height, stating: "Any person under the age of eighteen years who purchases a pressurized container or an indelible ink marker in the City of Rialto is guilty of a misdemeanor which is punishable by a fine, imprisonment or both";

B. Pending the legal sale or disposition of such items, store, maintain or keep, or cause to be so stored, maintained or kept, all pressurized containers and/or indelible ink markers in a locked and secured area which, although viewable by, is not accessible to the public without employee assistance; and

C. Failure to comply with this section shall be a misdemeanor.

(Ord. No. 1497, § 2, 12-13-11)

It is a misdemeanor for any person under the age of eighteen years to purchase a pressurized container and/or an indelible ink marker capable of defacing property.

(Ord. No. 1497, § 2, 12-13-11)

A. It is a misdemeanor for any person, regardless of age, to carry on his or her person a pressurized container or indelible ink marker while in any posted public facility, park, playground, swimming pool, or recreational area, other than a highway, street, alley or way, unless he or she is coaching or supervising an athletic team that is practicing or playing in the such locations and the use of a pressurized container or indelible ink marker is needed for such a purpose or has first received valid authorization from the chief of police or designee. As used herein, word "posted" means a sign placed in a reasonable location or locations stating it is a misdemeanor to possess a pressurized container or indelible ink marker in that public facility, park, playground, swimming pool, or recreational area without valid authorization.

B. It is a misdemeanor for any person under the age of eighteen years who is not accompanied by a responsible adult, to possess a pressurized container or an indelible ink marker capable of defacing property while on any public highway, street, alley or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle or other conveyance.

C. It is a misdemeanor for any person under the age of eighteen years who is not accompanied by a responsible adult, to possess a pressurized container or an indelible ink marker capable of defacing property while on private property without the consent of the owner, or lessee, or other person entitled to legal possession thereof.

(Ord. No. 1497, § 2, 12-13-11; Ord. No. 1498, § 1, 12-27-2011)

The city administrator is authorized to use city funds and facilities for the removal of graffiti from publicly or privately owned permanent structures located on public or privately owned property within the city; provided, however, that such public funds and facilities shall be used solely for the removal of the graffiti itself, and not the painting or repair of a more extensive area.

A. Graffiti on City Property. Where graffiti exists on property owned by the city, the graffiti shall be removed by city or by persons so contracted by the city.

B. Graffiti on Public Property. Where graffiti exists on property owned by a public agency other than the city, the graffiti may be removed by the city with the consent of the public agency owning said property.

C. Graffiti on Private Property. Where graffiti exists on privately owned property that is both in the public view and accessible from public rights-of-way, the graffiti may be removed by the city with the prior consent of the owner of said property.

D. Reimbursement. The city may proceed with any enforcement actions authorized by law against any person responsible for the graffiti or liable for the cost to remove the graffiti pursuant to the provisions of any applicable statute or ordinance including Chapters 5.94 and 9.60, Civil Code Section 1714.1 or Penal Code Section 640.5. Any fines or penalties collected as a result of the arrest and/or conviction of any persons for a violation of this chapter or any damages collected as a result of a judgment in favor of the city shall be credited to the city as reimbursement for its abatement of the graffiti.

(Ord. No. 1497, § 2, 12-13-11; Ord. No. 1498, § 2, 12-27-2011)

A. Failure to Remove Graffiti Unlawfully on Property. It is a misdemeanor for the owner of any privately owned structure upon which graffiti exists to fail or refuse to remove said graffiti in accordance with the provisions of this chapter or state law where such law is applicable, after receiving written notice to do so.

B. Notice of Intention to Abate and Remove Graffiti. A notice of intention to abate and remove graffiti shall be served in the same manner as an administrative citation pursuant to Chapter 1.10 of this code. Persons who receive such notices may contest the notice by following the procedure set forth in Chapter 1.10.

C. Disposal. Five days from the date of the mailing of the notice of the decision required by this section, or fifteen days after such action of the governing body authorizing the removal following appeal, the graffiti or any part thereof may be removed by the city.

D. Land Assessment. If the administrative costs and the cost of the removal which are charged against the owner of a parcel of land pursuant to this chapter are not paid within thirty days of the date of the order, or the final disposition of an appeal therefrom, such costs shall be assessed against the parcel of land pursuant to Government Code Section 38773.5 and transmitted to the tax collector for collection. This assessment has the same priority as other city taxes.

E. Limitation on Filing Judicial Action for Abatement Action. Any owner, lessee, occupant, agent or other interested party having any objections, or who feels aggrieved that any proceeding taken on appeal by the city council and ordering the abatement of any public nuisance under the provisions of this chapter, must bring an action to contest such decision within thirty days after the date of such decision of the hearing officer, or all objections to such decision shall be deemed waived.

(Ord. No. 1497, § 2, 12-13-11)

Every person who (1) defaces with paint or any other substance, (2) alters the condition or appearance, (3) damages, or (4) destroys any real or personal property without the consent of the owner or user shall be liable to the owner or user of such real or personal property for the cost to repair or restore such property to its original condition together with the value of the loss of use during the period of injury and all other detriment proximately caused thereby. In any action under this section, the owner or user who recovers damages under this section shall be awarded costs and attorney fees expended in pursuing recovery.

(Ord. No. 1497, § 2, 12-13-11)

A. In the case of an individual under the age of eighteen who violates the provisions of Sections 9.60.060, 9.60.070, 9.60.080, 9.60.100, or 9.60.110 of this division, the parent or the legal guardian of said minor shall be notified of the violation and shall be jointly and severally liable for any administrative fine assessed to said minor pursuant to Chapter 1.10. Such parent or legal guardian shall be deemed a "responsible adult" for the purposes of this chapter.

B. Notwithstanding subsection A, and consistent with Civil Code Section 1714.1, in situations where graffiti is willfully caused by individuals under the age of eighteen, the parent or legal guardian of said minor shall be jointly responsible with said minor for its removal and/or payment of the costs thereof, including court costs and attorney fees to the prevailing party. The owner or user of the defaced property may recover such costs up to twenty-five thousand dollars (or as otherwise determined by law) in a civil action in addition to any other remedies provided by law.

(Ord. No. 1497, § 2, 12-13-11)

A. The city council may, by resolution, offer and pay a reward for information leading to the apprehension and conviction of any person who places graffiti as defined herein upon public or private property within the city. In addition to any fines levied by the city for violation of this division, any person who has damaged property by inscribing graffiti on public or private property shall be liable for the amount of any reward paid pursuant to this division and Section 53069.5 of the California Government Code.

B. As a part of any sentence or other penalty imposed, the court may also order that restitution be paid to the victim by the admitted or convicted perpetrator, and in the case of a perpetrator who is a minor, by the minor's parent or lawfully designated guardian or custodian, pursuant to, inter alia, Civil Code Section 1714.1, Penal Code Section 594, and Government Code Sections 640.5 and 640.6.

C. Upon conviction of any person for violation of this division, or any state law pertaining to vandalism of property with a graffiti implement, the city encourages the sentencing court to impose community service time, pursuant to Section 640.6 of the California Penal Code, as that may be amended from time to time, and to revoke or suspend driving privileges as provided by state law.

(Ord. No. 1497, § 2, 12-13-11)

This chapter shall be interpreted so as to work in conjunction with (when and where applicable) any and all state and/or local ordinances relating to the control of graffiti and/or related vandalism, including, but not limited to, Sections 594, 594.1, 594.3, 640.5, 640.6, of the California Penal Code; Section 1714.1 of the California Civil Code; and Section 53069.3 of the California Government Code as those may be amended from time to time.

(Ord. No. 1497, § 2, 12-13-11)

A. Existence of Graffiti. The owner, lessee, occupant or agent of any property within this city who shall permit or allow the existence of graffiti in violation of this chapter upon any property owned, occupied or controlled by him or her, or who shall violate any of the provisions of this chapter, shall be guilty of a misdemeanor, which shall be punishable by a fine not to exceed one thousand dollars or by imprisonment of six months, or by both such fine and imprisonment.

B. Penalties for Unlawful Placement of Graffiti on Any Real or Personal Property, Public or Private.

1. The penalty for violation of this chapter for the unlawful placement of graffiti on any real or personal property, whether publicly or privately owned, shall be the maximum allowed by law, as provided in Chapter 1.16 of the Rialto Municipal Code or in Penal Code Section 594, including, but not limited to, imprisonment and the payment of a fine, and, if the violator is under the age of eighteen, may also include the performance of community service at a time other than during his or her hours of school attendance or employment.

a. Any community service which is required pursuant to this section by a person under the age of eighteen years, must be performed in the presence, and under the direct supervision, of the person's parent or legal guardian.

b. If the minor is unable to pay any fines levied for violations of this chapter, the responsible adult shall be liable for payment of the fine, except upon a finding by the court of good cause. Fines levied for violations of this chapter are to be credited to the city and shall be used for the removal of graffiti.

2. Upon conviction of any person for violation of any provision of this chapter, in addition to the community service sanction provided in this chapter, at the victim's option, the court will be required to order the defendant to perform the necessary labor to clean up, repair, or replace the property damaged by that person, or the defendant shall pay someone else to do so.

3. Any act of willful misconduct of a minor which results in a violation of this chapter shall be imputed to the parent or other responsible adult having custody and control of the minor for all purposes of civil damages, including court costs and attorney's fees, and the responsible adult shall be jointly liable with the minor for any damages resulting from the violation of this chapter, up to the maximum provided by Civil Code Section 1714.1(b), for each such violation of this chapter by the minor.

(Ord. No. 1497, § 2, 12-13-11)

The city council may, by resolution, offer and pay a reward for information leading to the determination and identity of, and the apprehension and conviction of, any person whose willful misconduct results in damage or defacement to public or private property by reason of inscribing or otherwise placing graffiti thereon. Any resolution adopted pursuant to the authorization of this chapter may further provide that the rewards paid in furtherance of obtaining compliance with and in prosecuting violation of this chapter, may be reimbursed to the city from fines collected pursuant to Penal Code Section 594 and/or Section 640.5 and Section 640.6 as part of its graffiti removal program.

(Ord. No. 1497, § 2, 12-13-11)

This chapter is not the exclusive regulation governing the abatement of graffiti within the city. It is supplemental and is in addition to the other codes, statutes, and ordinances heretofore or hereafter enacted by the city, the state, or any other legal entity or agency having jurisdiction over such matters.

(Ord. No. 1497, § 2, 12-13-11)