Salinas Municipal Code Art. III Graffiti

Footnotes:

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Editor's note— Ord. No. 2523 (NCS), § 1, adopted Sept. 27, 2011, amended Ch. 14A in its entirety to read as herein set out. Former Ch. 14A, §§ 14A-1—14A-16, pertained to similar subject matter, and derived from Ord. No. 1935 (NCS); Ord. No. 2209 (NCS). Subsequently, Ord. No. 2598 (NCS), §§ 3 and 4, adopted Sept. 5, 2017, recodified and renumbered Ch. 14A, as Ch. 5, Art. III, §§ 5-03.01—5-03.26, as set out herein.

It is the intent of the provisions of this chapter to provide an immediate and practical method, to be cumulative with and in addition to any other remedy available at law, whereby graffiti or other inscribed material may be removed from public or privately owned real or personal property in order to reduce blight and deterioration within the city. It is the purpose of the city council, through the adoption of this chapter, to provide additional enforcement tools to protect public and private real and personal property from acts of vandalism and defacement, including the application of graffiti on walls and other structures. Such acts are destructive of the rights and the values of property owners as well as the entire community.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

The city council finds that graffiti or other inscribed materials placed upon any public or privately owned real or personal property within the city, if not removed, will add to blight or downgrading of neighborhoods and will cause a lessening of property values in the neighborhoods where graffiti is present. The city council further finds that graffiti is obnoxious and is a public nuisance.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

(a) "Adhesive stickers" means any sheet of paper, fabric, plastic or other substance or material with an adhesive backing.

(b) "Aerosol paint container" means any aerosol container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint or other substances capable of being applied on public or private property in a manner that defaces the property.

(c) "Anti-graffiti materials" means products or materials used to prevent the adhesion of unwanted coatings or applications or to facilitate the removal of graffiti. These products or materials are typically liquid-applied coatings or films applied over the surface to be protected, but can also include landscaping and other plantings. The term "anti-graffiti materials" also includes original products, structures or installations which are made from or which are composed of materials that prevent the adhesion of unwanted coatings or applications or which facilitate the removal of graffiti.

(d) "Bona fide evidence of majority and identity" is any document evidencing the age and identity of an individual which has been issued a federal, state or local governmental identity, and includes, but is not limited to, a motor vehicle operator's license, a registration certificate issued under the federal Selective Service Act, or an identification card issued to a member of the armed forces.

(e) "Costs" means and includes, but is not limited to, court costs, attorneys' fees, costs of removal of the graffiti or other inscribed materials, costs of repair and replacement of defaced property, and law enforcement costs incurred by the city in identifying and apprehending persons who create, cause or commit the graffiti in violation of this chapter.

(f) "Director" means the director of public works or his authorized representative.

(g) "Etching cream" means any caustic cream, gel, liquid, or solution capable, by means of a chemical action, of defacing, damaging, or destroying hard surfaces in a manner similar to acid.

(h) "Etchers" or "etching tools" means any sharp or pointed instrument, device or other mechanism including, but not limited to, glass etchers, metal etchers, cutting and grinding instruments, awls, chisels, glass cutters, drill bits or any other instrument that is capable of scratching or otherwise marking any surface including, but not limited to, glass, mirrors, windows, steel, aluminum, brass, tin, fiberglass, wood, plastic, concrete or any other surface.

(i) "Graffiti" means any inscription, word, figure, mark or design that is written, marked, etched, scratched, drawn, glued or painted on or otherwise posted or affixed to or on any surface without the prior consent of the owner of the property on which the surface is located, regardless of the nature of the material.

(j) "Graffiti attracting surface" means any surface of any structure, tree, shrub, vehicle, personal or real property in the city that has been defaced with graffiti after removal more than three times in any twelve-month period.

(k) "Graffiti implement" means an adhesive sticker, aerosol paint container, etching cream, etching tool, marking pen, a paint or graffiti sticker, spray actuators or other similar devices that may be used to scar or to deface property.

(l) "Marker pen" means any marker pen or any similar implement containing an ink, paint or other pigmented liquid.

(m) "Minor" means any person under the age of eighteen years.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

No person shall place graffiti or other inscribed materials upon any public or privately owned real or personal property located within the city.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

No person owning or otherwise in control of any real or personal property within the city shall permit or allow any graffiti to be placed upon or remain on any real or personal property when the graffiti is visible from the street, right-of-way or other public or private property.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

It is unlawful for any minor to have in his or her possession any graffiti implement while on any school property, grounds, facilities, buildings or structures, or in areas immediately adjacent to these specific locations upon public property, or upon private property without the prior written consent of the owner or occupant of such private property. The provisions of this section shall not apply to the possession of felt-tip markers or marker pens with a felt writing surface of one-half inch or greater by minors attending, or travelling to or from school at which the minor is enrolled, if the minor is participating in a class at said school which formally requires the possession of felt-tip markers. The burden of proof in any prosecution or other enforcement action for violation of this section shall be upon the minor student to establish the need to possess the felt-tip marker.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

It is unlawful for any person to have in his or her possession any graffiti implement while in or upon any public facility, park, playground, swimming pool, recreational facility, or other public building owned or operated by the city or while in or within one hundred feet of an underpass, bridge abutment, storm drain, or similar types of infrastructure unless otherwise authorized by the city or the owner thereof.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

It is unlawful for any person, other than a parent or guardian, or for any firm, corporation or partnership doing business in the city to sell, give or in any way furnish, to another person, who is in fact under the age of eighteen years, any aerosol paint container or marker pen or other graffiti implement with a felt writing surface of one-half inch or greater without the consent of the minor's parent or legal guardian, which consent shall be given in advance.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

(a) No person, firm, corporation or partnership doing business in this city shall display any aerosol spray paint container, or any marker pen with a felt writing surface of one-half inch or greater, containing anything other than a solution which can be removed with water after it dries, in an area other than an enclosed counter which is locked and secure, or which is otherwise not made available to the public except upon request. Nothing herein shall preclude the storage or the display of graffiti implements in an area viewable by the public so long as such items are not accessible to the public without employee assistance.

(b) Customer Signage. Every person, firm, corporation or partnership doing business in the city which sells graffiti implements shall post a sign in clear public view at or near the display of such products stating:

"Any person who defaces real or personal property with paint or any other liquid, tool or device is guilty of a crime punishable by imprisonment up to six (6) months and/or a fine up to $1,000."

Additionally, every person, firm or corporation doing business in the city which sells graffiti implements shall post a sign in direct view of such persons responsible for accepting customer payment for graffiti implements stating:

"Selling graffiti implements to persons less than eighteen (18) years of age is against the law and punishable by six (6) months in jail and/or a fine of $1,000."

(c) Civil Responsibility for Damages for Wrongful Display or Storage. Any person who displays or stores, or permits the display or storage, of any graffiti implement in violation of the provisions of this section shall be personally liable for any and all costs, including attorney's fees and court costs, incurred by any party in connection with the removal of graffiti, the repair of any property containing graffiti, or such party's prosecution of a civil claim for reimbursement of damages resulting from such graffiti removal or property repair, arising from the use by any person of such wrongfully displayed or stored graffiti implement in violation of the provisions of any sections of this chapter.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

Any person applying graffiti on city-owned property or privately-owned real or personal property shall have the duty to remove the same within twenty-four hours after notice by the city or private owner of the property involved. Such removal shall be done in a manner prescribed by the director or his designee to satisfy any payment or penalty that might otherwise be imposed. Any person applying graffiti shall be responsible for such removal or for the payment thereof. Failure of any person to so remove graffiti or pay for its removal shall constitute an additional violation of this chapter. Where graffiti is applied by a minor, the parent(s) or legal guardian(s) shall also be responsible for such removal or for the payment thereof. The director or his designee may convert such payment into equivalent forms of community service hours. Such payments or equivalent forms of community service hours shall be in addition to any other penalties imposed.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

Whenever the director or his designee determines that graffiti exists on any occupied real property or any personal property in the City of Salinas which is visible from the street, right-of-way or other public or private property, the director or his designee shall immediately notify the owner(s) of such property, and may notify the person(s) in possession or control of such property if different from the owner(s), to remove or paint over the graffiti. The removal shall be accomplished within ten days after receipt of such notification or within ten days after the notice is deemed to have been received in the event notice is mailed pursuant to the provisions of Section 5-03.12. When the real property is vacant and unoccupied, the removal shall be accomplished within twenty days after the notice is deemed to have been received by the person or company with dominion and control over the property.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

The notice to remove pursuant to Section 5-03.11 shall be given by delivery a written notice personally to the owner(s) or occupant(s) of the property upon which the graffiti is located, or by depositing such notice in the United States mail, postage prepaid, and addressed to the owner(s) thereof at the owner(s) last known address as the same appears on the last equalized assessment roll of the county of Monterey. In the event a notice to remove is also given to the person(s) in possession or control of the property, such notice shall be given in either manner specified in this section with respect to giving notice to the owner of the property, and may be addressed to "occupant" or "to whom it may concern," if the name of such person(s) is not known.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

Upon failure of persons to comply with the notice, the director or his designee shall cause the graffiti to be removed, or painted over and shall file a report with the city council advising that the removal was required and has been done, the cost of doing such work and the name of the owner or owners of the property upon which the work was required. Only the graffiti shall be removed. Painting or repair of a more extensive area is prohibited.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

Prior to the performance of any graffiti abatement work by the city or by any person under contract with the city the director may cause to be recorded in the office of the recorder of Monterey County a notice of the pendency of graffiti abatement proceedings by the city against the particular parcel involved. Upon completion of the graffiti abatement work required and the reimbursement of the city for any necessary charges incurred on account thereof, the director shall cause to be recorded in the office of the recorder of Monterey County, a notice of the completion of graffiti abatement proceedings against the particular parcel involved with respect to which a prior notice of pendency of graffiti abatement proceedings has been recorded. The notice of completion of graffiti abatement proceedings shall have the effect, when recorded, of conclusively establishing that graffiti abatement proceedings have been completed and all necessary charges incurred on account thereof by the city have been paid, and shall extinguish the notice of pendency of graffiti abatement proceedings previously recorded. These notices shall specify the name of the current owner(s) of the parcel as shown on the last equalized assessment roll of the county of Monterey and the date on which, and the book and page number of the official records of Monterey County at which, the ownership interest of such owner(s) is shown as recorded, the Monterey County assessor's parcel number for the parcel involved, as well as any other information necessary to facilitate their recordation and convey notice of the pendency or completion of graffiti abatement proceedings.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

The city council shall conduct a hearing upon the report submitted by the director for the purpose of hearing all protests and objections to same, the work done thereunder and the costs contained therein. At least ten days in advance of such hearing, the city clerk shall notify the persons owning property upon which work was performed under Section 5-03.13 of the date, time and place of such hearing and the total cost to be charged against such person and property, which total cost shall include such charges as the city council, by resolution, has determined for administrative expenses connected with the removal and the collection of costs therefor. The notice provisions of Section 5-03.12 shall be applicable to the notices required to be sent under this section.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

At the public hearing, the city council shall hear and determine all protests and objections to the report and the work done thereunder and costs contained therein, and shall, by resolution, confirm, amend, or reject the report, either in whole or in part.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

(a) The city council shall, after such hearing as provided in Section 5-03.15, return its confirmed report to the director of finance, with instructions to collect the total costs of removal by billing the property owner(s). If such costs are not paid, the director of finance shall have the costs entered upon the assessment roll, to 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 under foreclosure for sale and in case of delinquency as provided for in ordinary municipal taxes; or, if such costs are not paid, the city council may, at its option, by resolution, order that all of the costs of removal, as shown in the confirmed report, shall constitute liens upon the property from which such removal was made, and direct the director of finance to record a certified copy of such resolution in the office of the recorder of the county of Monterey. The city attorney shall thereupon proceed to foreclose each of such liens and to collect all of the amounts owing to the city in the manner provided by law.

(b) If the person causing the graffiti nuisance is a minor, then the parent or the guardian of the minor shall be jointly and severally liable with the minor. The expense of abatement of any nuisance, resulting from the defacement by a minor of the property of another by graffiti, shall be a lien against the property of the parent or the guardian having custody and control of the minor, and a personal obligation against the parent or the guardian having custody and control of the minor.

(c) Description of Lots. Lots on which graffiti remains shall be described by giving the lot and block number or Monterey County assessor's parcel number of the same according to the official map or the assessment map of such city used for describing property on tax bills, and no other description of such lot shall be required, except as otherwise provided herein.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

As an alternative to the method of removal of graffiti as provided in Sections 5-03.11 through 5-03.18, inclusive, the city may appropriate money from the general fund to finance the removal of graffiti from public or privately owned real or personal property located within the city, subject to the following criteria:

(a) Only the graffiti itself shall be removed or painted over. Painting or repair of a more extensive area is prohibited;

(b) Prior to the removal of graffiti the city shall obtain written consent of the public entity having jurisdiction over the structure, and, in the case of privately-owned real or personal property, only after securing the written consent of the owner; and

(c) The graffiti is visible from the street, right-of-way or other public or private property.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

(a) In approving any land use entitlements or making any approvals related to the use of land or property, the city planner shall require the incorporation of best management practices reasonably related to the control of graffiti and/or the mitigation of the impacts of graffiti. Such best management practices may include, without limitation:

(1) The use or the installation and maintenance of ant-graffiti materials approved by the city on likely graffiti-attracting surfaces.

(2) Installation and maintenance of landscaping to discourage defacement of and/or protect likely graffiti-attracting surfaces.

(3) Installation and maintenance of lighting to protect likely graffiti-attracting surfaces.

(4) Immediate removal of graffiti by appropriate means within seventy-two hours.

(5) Incorporation of architectural or design elements or features to discourage graffiti defacement in accordance with the principles of Crime Prevention Through Environmental Design (CPTED).

(6) Authorizing right of access by city employees or contract agents to remove graffiti if not removed within specified time periods.

(7) Supplying the city at its request with paint (of the appropriate color and type), cleaning agents, and/or other materials acceptable to the city to abate or to deter graffiti.

(8) Other requirements, as deemed reasonably feasible by the city planner, to deter, to protect or to reduce the potential for graffiti defacement.

(b) The city planner shall require applicants for subdivision maps, conditional use permits or other land use entitlements to record against the property, and shall require applicants of other land use entitlements, including site plan reviews, any conditions of approval and/or best management practices relating to graffiti control or prevention. The applicant shall record those conditions of approval, in a form satisfactory to the city attorney, with the Monterey County Recorder, and such conditions of approval and/or best management practices shall run with the land and bind all future owners of the property and any and all successors in interest of the property.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

(a) All utility fixtures and equipment with above-surface features are hereby declared to be graffiti-attracting surfaces and shall be constructed of, painted or otherwise treated with anti-graffiti materials, including but not limited to, graffiti resistant paints or finishes. Graffiti on utility fixtures and equipment shall be removed by the utility company within forty-eight hours of being reported to the utility.

(b) All utility structures shall have a decal or permanent sticker with the utility company's graffiti abatement contact information affixed to each side (minimum of four) of the utility fixture or equipment. Letter height shall be a minimum of 0.2 inch.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

(a) Pursuant to California Government Code Section 53069.5, the city may offer a reward in an amount to be established by resolution of the city council for information leading to the identification and the apprehension of any person who willfully damages or destroys any city-owned real or personal property, or without the permission of the owner or the occupant, any privately-owned real or personal property, by the use of graffiti. In the event of damage to public property, the offender or the parent or legal guardian of any unemancipated minor must reimburse the city for any reward paid. In the event of multiple contributors of information, the reward amount shall be divided by the city in the manner it shall deem appropriate. For the purposes of this section, diversion of the offending violator to a community service program, or a plea bargain to a lesser offense, shall constitute a conviction.

(b) Claims for rewards under this section shall be filed with the city in the manner specified by the city council.

(c) No claim for reward shall be allowed unless the city investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

In any case in which a criminal prosecution is pending or is about to be instituted for violation of Penal Code Sections 594 and 640.6, or any other law that authorizes a court to sentence a criminal defendant to remove graffiti placed on property by that defendant, the director may suspend abatement actions under this chapter. In such a case, the abatement action shall be suspended only in connection with any property upon which the defendant is charged with placing graffiti, and only until such time as the defendant is sentenced or the case is otherwise closed. This provision shall not prohibit a property owner from removing graffiti from his or her own personal property during such time as the criminal proceeding is pending.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

In addition to any penalties which may specifically be set forth elsewhere in this chapter, any violation or failure to comply with any of the provisions of Sections 5-03.04, 5-03.08 and 5-03.09 shall be guilty of a misdemeanor. Any person violating or failing to comply with any of the remaining provisions of this chapter shall be guilty of an infraction. Each person, firm, corporation or partnership shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of the provisions of this Code is committed, continued or permitted by such a person, firm, corporation or partnership, and shall be deemed punishable thereof as provided in this chapter.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

(a) Recovery From Parents or Guardians of Minors. Pursuant to California Civil Code Section 1714.1(b), any parent or legal guardian having custody or control of a minor who knowingly permits, or by insufficient control, allows the minor to possess a graffiti implement without supervision thereof shall be personally and jointly and severally liable with such minor for any and all costs incurred in connection with the removal of any graffiti caused by the minor, including all abatement costs, attorney's fees, and court costs resulting from the civil prosecution of any claim for damages, not to exceed the maximum amount established by the California Judicial Council in accordance with California Civil Code Section 1714.1(c). The city shall be entitled to seek full cost recovery from the parent or legal guardian of a minor found to be guilty of violating any provision of this chapter.

(b) Administrative Remedies. Any violation of this chapter may be prosecuted administratively, in the discretion of the city attorney, pursuant to the city's administrative remedies ordinance.

(c) Remedies Cumulative. The remedies specified in this chapter shall be cumulative and the city may resort to any other remedy available at law or in equity and resort to any one remedy shall not cause an election precluding the use of any other remedy with respect to a violation.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

Any person found guilty of a violation of this chapter or any parent or guardian liable for any costs incurred in connection with the removal of any graffiti caused by their minor child or ward as set forth in this chapter, shall reimburse the city for any and all costs the city may incur in removing the graffiti. Such reimbursement shall be in addition to any other penalties imposed by the court. In the event a parent or guardian is unable due to a financial hardship to reimburse the city for all costs incurred by the city in removing the graffiti, the city may allow such parent or guardian to perform community service as an alternative means of reimbursement. The determination of financial hardship and the performance of community service, including the amount of community service required to fully reimburse the city for all costs incurred by the in removing the graffiti, shall be at the discretion of the city manager or his designee. The city manager or his designee shall use the provisions of California Penal Code Section 594.1 and related sections of California law, as the same may be amended, replaced or renumbered from time to time, as a guideline for purposes of calculating the amount of community service time required for purposes of this section.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)

If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The Salinas City Council hereby declares that it would have passed this ordinance, and each and every section, subsection, clause and phrase thereof not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.

(Ord. No. 2523 (NCS), § 1, 9-27-2011; Ord. No. 2598 (NCS), §§ 3, 4, 9-5-2017)