Chapter 6 — GRAFFITI ABATEMENT

Sections:

6-3600 - FINDINGS.

In order to prevent graffiti and to provide an immediate and practical method, to be cumulative with and in addition to other provisions of this code, Government Code Section 53069.3, and other remedies available at law, of combating the effects of graffiti vandalism on public and privately-owned structures and real property, the Board of Supervisors of the County of San Joaquin hereby finds that graffiti is detrimental to property values, degrades the community, causes an increase in crime, is inconsistent with the County's property maintenance goals and aesthetic standards, is obnoxious, is a nuisance, and, unless it is quickly removed from public and private property, results in other properties becoming the target of graffiti. It is the intent of the Board of Supervisors, through the adoption of this notice to all of those who callously disregard the property rights of others, that the administrative and law enforcement agencies of the County, including the Community Development Department, Sheriff's Department and the District Attorney's Office, will strictly enforce the law to its maximum extent, imposing administrative penalties and aggressively prosecuting those persons engaging in the defacement of public and private properties.

(Ord. 4324 § 1 (part), 2007)

6-3601 - DEFINITIONS.

(a)

"Graffiti" means any inscription, word, figure, or design that is marked, etched, scratched, inscribed, marred, drawn, sprayed, painted, pasted or otherwise affixed to, or on, any surface, without authorization in advance from the owner thereof.

(b)

"Demand for payment" means an invoice for graffiti abatement costs prepared by the County containing the location and description of defaced property, a summary of graffiti abatement actions performed, a listing of abatement costs and expenses incurred by the County, and the basis for the determination of the responsible person or offender.

(c)

"Property" means real or personal property, whether publicly or privately owned, within the County limits.

(d)

"Pressurized container" means any can, bottle, spray device or other mechanism designed to propel liquid or similar material which contains ink, paint, chalk, dye or other similar substance which is expelled under pressure, either through the use of aerosol devices, pumps or similar propulsion devices.

(e)

"Responsible person" means any person or entity who is the owner or who has primary responsibility for the repair or maintenance of the property.

(f)

"Structure" means the same as defined in the Uniform Building Code.

(g)

"Surface" means the exposed area of any object, including, but not limited to, walls, fences, sidewalks, curbs, street lamp poles, utility poles, trees and vegetation, signs, and/or trash receptacles.

(Ord. 4324 § 1 (part), 2007)

6-3602 - NUISANCE.

It is hereby declared that graffiti is obnoxious and a public and private nuisance, and is subject to abatement and punishment as defined in this Code and state law.

(Ord. 4324 § 1 (part), 2007)

6-3603 - GRAFFITI PROHIBITED.

(a)

It shall be unlawful for any person to apply graffiti upon any public or privately owned property, structure, or surface within the unincorporated portions of the County of San Joaquin.

(b)

It shall be unlawful for any person who owns or is otherwise in control of any real property within the unincorporated portions of the County of San Joaquin, even if it is located in the County right of way, to permit or allow any graffiti to be placed upon or remain for longer than ten (10) days on any surface located on such property and visible from the street or other public or private property.

(Ord. 4324 § 1 (part), 2007)

6-3604 - REMOVAL OF GRAFFITI.

(a)

It is unlawful for a responsible person to permit property that has been defaced with graffiti to remain so defaced for a period longer than ten (10) days after notification by the County of the existence of graffiti on the property which must be removed. Property shall be considered no longer defaced when the graffiti is removed or the defaced area is covered by paint that is similar in shade and color to the surface upon which the graffiti is placed.

(b)

Use of Public Funds. Whenever the County becomes aware, or is notified and determines, that graffiti is located on public or privately owned property viewable from a public or quasi-public place within the County, the County shall be authorized to use public funds for the removal of same, or for the painting or repairing of same, but shall not authorize or undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located, unless the abatement supervisor or his/her designee, determines that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community.

(Ord. 4324 § 1 (part), 2007)

6-3605 - RIGHT OF COUNTY TO REMOVE.

(a)

Notice of violation and enforcement proceedings shall be conducted pursuant to the procedures contained in Section 9-1905.4 of the Development Title, except that the responsible party must abate the graffiti or appeal the notice of violation within ten (10) days of service of the notice of violation. Service of the notice is complete at the time of deposit in the mail or when personal service is effectuated. The failure of any person to receive such notice shall not affect the validity of any legal proceedings regarding removal of the graffiti.

(b)

Whenever graffiti exists upon the property owned by another public agency, or a private property owner, the County of San Joaquin may remove it with the consent of the public entity or responsible person.

(1)

Notice of Code Violation—Method of Service. Before entering onto a person's property to abate graffiti, the County shall notify the responsible person in writing of its intent to do so. Said notice shall be served by any of the following methods:

(A)

Delivering to and leaving personally with the responsible person or a person of suitable age and discretion who resides or is employed at the property ("personal service"); or

(B)

Certified mail, postage prepaid, return receipt requested to the last known address of the responsible person (simultaneously, a duplicate notice may be sent by regular mail, postage prepaid); or

(2)

Notice—When Served. The notice shall be deemed served and the responsible person considered notified at the time of personal service; or the successful delivery of the certified letter (or the third day after mailing of the duplicate notice); or ten (10) days after the notice is posted on the property. Actual notice shall cure any defect in the effort to provide constructive notice.

(3)

Contents of Notice. The notice shall include the County Ordinance Code section being violated; the property address or location where the graffiti has been observed; the date(s) and time(s) the graffiti was observed; a description of the corrective action required and time limit — including the need to use paint which is similar in shade and color to the structure or item upon which the graffiti is painted; the consequences of failing to comply, all hearing and appeal rights, as set forth in Section 9-1905 et seq.; and the name of the issuing officer.

(4)

Securing Owner Consent, Prior to entering onto private property for the purpose of graffiti removal, the County shall secure the written consent of the responsible person, which may be incorporated into the required written notice.

(5)

Pre-Abatement Conference. A responsible person may request, by telephone, in writing, or in person, a hearing be held before the County enters the party's property to abate graffiti. The request for a conference shall stay the County's abatement efforts and must be made within ten (10) days of being served notice pursuant to Subsection (b)(l) of this section. The conference shall be conducted in accordance with the requirements contained in Sections 9-1900 et seq. of this Code, except as modified below. The hearing will be set within five (5) days of the request for a pre-abatement conference. The responsible person will be orally notified of the date, time and place of the conference. The purpose of the conference shall be to determine the propriety of the County's impending abatement action. A decision on the validity of that action shall be made and communicated to the responsible person before the end of the conference (unless a continuance is necessary). If determined to be valid, the County may abate the offending graffiti forty-eight (48) hours after the decision.

(c)

Failure of the responsible person to remove graffiti from their property or file an appeal within ten (10) calendar days after notification to the property owners of the violation will cause the building or structure to be declared a public nuisance.

(d)

In the event a building or property is declared a public nuisance the County of San Joaquin may, at its option, summarily abate such graffiti and the property owner shall be assessed the cost of removal of such graffiti.

(Ord. 4324 § 1 (part), 2007)

6-3606 - CRIMINAL ACTION.

(a)

Violation of any section of this chapter shall be flied as either an infraction or a misdemeanor at the discretion of the District Attorney.

(b)

Community service in the unincorporated area of San Joaquin County may be imposed in lieu of any penalties and punishments where there has been a conviction of guilty or nolo contendere plea to a misdemeanor.

(c)

Any community service which is required pursuant to Subsection (b) of this section of a person under the age of eighteen (18) years may be required to be performed in the presence and under the direct supervision of the person's parent or legal guardian.

(d)

If a minor is personally unable to pay any fine or restitution levied for violating this chapter, the parent or legal guardian shall be liable for the payment of the fine or restitution for any intentional acts of the minor.

(Ord. 4324 § 1 (part), 2007)

6-3607 - PENALTY PROVISIONS—ADMINISTRATIVE CITATIONS.

(a)

It is the County's intent that, pursuant to California Penal Code Section 640.6(a), all acts of graffiti vandalism occurring within the County shall be prosecuted as misdemeanors pursuant to California Penal Code Section 594 et seq., or this chapter at the discretion of the District Attorney. Accordingly, any violation of Section 6- 3603(a) of this chapter shall be a misdemeanor punishable by either six (6) months in jail, a one thousand dollar ($1,000.00) fine, or by such fine and imprisonment, and by the performance of community service in the form of graffiti clean-up to the maximum extent permitted by California Penal Code Section 594 and/or any other provision of law.

(b)

In addition to all other remedies or penalties provided by law, violation of any of the sections contained in this chapter are punishable in the same manner as set forth in Section 9-1900 et seq.

(c)

Violation of any section of this chapter, except for Section 6-3603(a) of this chapter, may be filed as an infraction or a misdemeanor at the discretion of the District Attorney.

(d)

Any person or entity violating any provision of this chapter or failing to comply with any of its requirements shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of this chapter is committed, continued, or permitted by such person or entity and shall be deemed punishable therefor as provided herein.

(e)

Community service in and for the County of San Joaquin may be imposed by the court, in addition to any penalty imposed pursuant to this chapter, where there has been a conviction of guilty or nolo contendere plea to a violation of this chapter.

(f)

Any community service which is required pursuant to Subsection (e) of this section of a person under the age of eighteen (18) years may be required by the court to be performed in the presence and under the direct supervision of the person's parent or legal guardian.

(g)

If a minor is personally unable to pay any fine or restitution levied for violating this chapter, the parent or legal guardian shall be liable for the payment of the fine or restitution for any intentional acts of the minor.

(Ord. 4324 § 1 (part), 2007)

6-3608 - SUSPENSION OR DELAY OF DRIVING PRIVILEGES.

Each conviction of a person thirteen (13) or older for violation of Section 6-3602(a) of this chapter shall result in the suspension or delay in driving privileges of that person pursuant to California Vehicle Code Section 13202.6.

(Ord. 4324 § 1 (part), 2007)

6-3609 - PARENTAL CIVIL LIABILITY.

In addition to any other remedy provided herein, each parent or legal guardian shall also be personally liable for any and all costs to any person or business incurred in connection with the removal of graffiti caused by that parent or guardian's minor child, and for all law enforcement costs, County staff costs, attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damages or reimbursement in accordance with California Civil Code Section 1714.1.

(Ord. 4324 § 1 (part), 2007)

6-3610 - RECOVERY OF COUNTY FUNDS.

Pursuant to Government Code Section 53069.3(d)(2), if the County has expended funds to remove graffiti or other inscribed material created, caused or committed by a minor, the County may recover the funds according to the following procedure:

(a)

The Director of the Community Development Department, or his or her designee (Hearing Officer), shall give the minor and parent or guardian having custody and control of the minor not less than forty-eight (48) hours' notice of a hearing to be held by the hearing officer for the purpose of showing cause why the County should not recover the funds from the minor and the parent or guardian having custody and control of the minor. Following notice, the hearing shall be held by the hearing officer at the time, date and place designated and at such hearing the minor and parent or guardian having custody and control of the minor may each be heard and provided with the opportunity to show cause why the County should not recover funds from the minor and the parent or guardian having custody and control of the minor. Following the hearing, the hearing officer shall determine whether the County should recover funds from the minor and the parent or guardian having custody and control of the minor.

(b)

If the hearing officer determines that the County should recover funds from the minor and the parent or guardian having custody and control of the minor, the County shall provide an accounting of the funds along with a demand for payment to the minor and the parent or guardian having custody and control of the minor.

(c)

Pursuant to Government Code Sections 38772, 38773.2 and 38773.6, the parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor for the funds expended by the County. If payment is not made within thirty (30) days from the date of the accounting and demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of one hundred dollars ($100.00) plus interest on the unpaid amount plus penalty, which interest shall accrue at the rate of one and one-half percent (1.5%) per month until paid.

(d)

In the event the funds have not been paid within thirty (30) days from the date of issuing an accounting and demand for payment, including any penalty and interest thereon, shall constitute a lien pursuant to Government Code Sections 38772 and 38773.2 against the property of the minor and against the property of the parent or legal guardian having custody and control of the minor. Prior to recording notice of a lien, the County shall provide notice pursuant to Government Code Section 38773.2. Any such lien not paid by June 30th of each year may, upon adoption of the resolution by the Board of Supervisors, be collected along with, and in the same manner as, the general property taxes. The liened property shall be subject to the penalties, procedures and sale in case of delinquency as provided in the Civil Code.

(e)

As an alternative to a lien and pursuant to Government Code Sections 53069.3(d)(2) and 25845, the funds shall constitute a special assessment against a parcel of land owned by the minor or by the parent or legal

guardian having custody and control of the minor. The assessment shall be collected as provided for in Government Code Section 25845.

(f)

In addition to any other remedy provided herein or available at law, the amount owed pursuant to Government Code Section 38772 shall constitute a personal obligation against the minor and a personal obligation against the parent or legal guardian having custody and control of the minor.

(Ord. 4324 § 1 (part), 2007)

6-3611 - ADMINISTRATIVE FEE.

An administrative fee as established from time to time by resolution of the County Board of Supervisors shall be added as part of any abatement proceedings.

(Ord. 4324 § 1 (part), 2007)

6-3612 - CIVIL RESPONSIBILITY FOR DAMAGES FOR WRONGFUL SALE, DISPLAY OR STORAGE.

Any person who sells, displays or stores any of the graffiti implements listed in Section 6-3613 in violation of the provisions of this chapter shall, to the fullest extent permitted by law, be personally liable for any and all costs incurred by any party in connection with the removal of graffiti, or the repair of any property containing graffiti, caused by any person who shall use such graffiti implement in violation of the provisions of California Penal Code Section 594, and for all attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damages.

(Ord. 4324 § 1 (part), 2007)

6-3613 - SALE OF AEROSOL PAINT AND MARKERS—POSSESSION BY MINORS.

(a)

All persons offering for sale pressurized containers of paint, indelible or waterproof ink or other liquid capable of defacing property shall restrict access to those items by placing all such items in a locked counter, cabinet, or other storage facility so that access to them can only be gained by employees, agents, or other authorized representatives. All persons offering for sale markers with a marking tip of one-quarter (¼) inch or more in width shall keep such markers in a location that is in the constant view of the employees, agents, or other authorized representatives selling such markers.

(b)

It is unlawful for any person:

(1)

To sell, exchange, give, loan or in any way furnish to any person under the age of eighteen (18) years, any pressurized container six (6) ounces or less (net weight of contents) that is capable of defacing property with permanent, indelible or waterproof ink, paint, or other liquid; or

(2)

Under the age of eighteen (18) years to have in his or her possession any pressurized container six (6) ounces or less (net weight of contents) that is capable of defacing property with permanent indelible or waterproof ink, paint, or other liquid while (A) upon public property, unless the minor is using the pressurized container under the supervision of a parent, teacher or legal guardian, or (B) upon private property without the consent of the owner of such private property; or

(3)

To sell, exchange, give, loan, or in any way furnish to any person under the age of eighteen (18) years any marker with a marking tip one-quarter (¼) inch or more in width that is capable of defacing property with permanent, indelible or waterproof ink, paint, or other liquid; or

(4)

Under the age of eighteen (18) years to have in his or her possession any marker with a marking tip one- quarter (¼) inch or more in width that is capable of defacing property with permanent, indelible or waterproof ink, paint, or other liquid while (A) upon public property, unless the minor is using the marker under the supervision of a parent, teacher or legal guardian, or (B) upon private property without the consent of the owner of such private property.

(Ord. 4324 § 1 (part), 2007)

6-3614 - SIGNS REQUIRED.

Any person, organization, company, firm or association engaged in the retail sale of aerosol containers of paint and other liquid substances, or markers with a marking tip of one-quarter (¼) inch or more in width, capable of defacing property must display at the location of retail sale a sign clearly visible and legible to employees and customers which states as follows:

IT IS UNLAWFUL FOR ANY PERSON TO SELL OR GIVE TO ANY INDIVIDUAL UNDER THE AGE OF EIGHTEEN YEARS, WHO IS NOT ACCOMPANIED BY A RESPONSIBLE ADULT, ANY AEROSOL CONTAINER OF PANT OR OTHER LIQUID SUBSTANCE OR MARKERS WITH A MARKING TIP OF ONE- QUARTER INCH OR MORE IN WIDTH, CAPABLE OF DEFACING PROPERTY.

(Ord. 4324 § 1 (part), 2007)

6-3615 - REPORTING GRAFFITI.

The County of San Joaquin may pay to any person who provides information which leads to the arrest and conviction of any person who applies any drawing, inscription, figure or mark, commonly known as graffiti, to a surface of real or personal property, a reward as established from time to time by resolution of the Board of Supervisors. In addition to any fines levied by the County for violation of this chapter, 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 chapter and Section 53069.5 of the California Government Code. If such person is an unemancipated minor, such minor's parents or guardian are so liable and shall pay such amount to the County.

(Ord. 4324 § 1 (part), 2007)

6-3616 - ABATEMENT PROCEDURES.

The Director of the Community Development Department, or his authorized representative, may institute procedures for abatement of property upon which graffiti exists. The procedures set forth in Section 8-5101 et seq. of this code, shall apply to any such abatement. Costs for any abatement performed by, or on behalf of, the County of San Joaquin may be recovered by San Joaquin County from the property owner in accordance with the procedures established in Section 6-3611 of this chapter.

(Ord. 4324 § 1 (part), 2007)

6-3617 - EASE OF REMOVAL PROVISIONS.

(a)

Conditions on Encroachment Permits. Encroachment permits issued by the County may, among other items, be conditioned on: (1) the permittee applying an anti- graffiti material to the encroaching object or structure of a type and nature which is acceptable to the County Administrator, or his or her designee; (2) the immediate removal by the permittee of any graffiti; (3) the right of the County to remove graffiti or to paint the encroaching object or structure; (4) the permittee providing the County with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object or structure containing graffiti.

(b)

Conditions on Discretionary Approvals. In imposing conditions upon conditional use permits, variances, tentative maps, or other similar land use entitlements or development or design applications, the County may impose graffiti removal requirements or any or all of the following conditions, or other similar or related conditions:

(1)

Use of Anti-Graffiti Material. Applicant may be required to apply an anti-graffiti material and provide a landscape design of a type and nature which is acceptable to the County Administrator, or his or her designee, to such of the publicly viewable surfaces to be constructed on the site deemed by the County Administrator, or his or her designee, to be likely to attract graffiti ("graffiti attracting surfaces" hereinafter in this section);

(2)

Right of Access to Remove Graffiti. Applicant shall grant, in writing, the right of entry over and access to such parcels, upon forty-eight (48) hours' posted notice, by authorized County employees or agents, for the purpose of removing or painting over graffiti on graffiti attracting surfaces previously designated by the County Administrator, or his or her designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land.

(3)

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

(4)

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 County, that the owners of the lots shall immediately remove any graffiti placed on publicly viewable trees, rocks and structures thereon to the County's satisfaction.

(Ord. 4324 § 1 (part), 2007)

6-36l8 - PREVENTION PROVISIONS.

(a)

Design of New Graffiti-Attracting Surfaces. Any applicant for design review approval, conditional use permit, temporary activity permit, land development permit, site plan approval, planned development approval, development agreement, or other form of development or building permit shall, to the extent deemed feasible by the County Administrator, or his or her designee, have designed any building structures visible from any public or quasi-public place in such a manner as to consider prevention of graffiti, including, but not limited to, the following: (1) Use of additional lighting; (2) use of nonsolid fencing, where permitted; (3) use of landscaping designed to cover large expansive walls such as ivy or similar clinging vegetation; and (4) use of architectural design to break up long continuous walls or solid areas.

(b)

Retrofit Existing Graffiti-Attracting Surfaces. The following preventative measures may be ordered after providing adequate notice and the opportunity for an abatement hearing pursuant to Section 9-1900 et seq. of this code. No graffiti need currently reside on the property before instituting such a proceeding, the County must only show that the surface of a structure has been defaced more than four (4) times in six (6) months and that the proposed retrofit is necessary and reasonable.

(1)

At Owner's Expense. Any surface of a structure on a parcel of land which has been defaced with graffiti more than four (4) times in six (6) months, or the immediate area surrounding said surface, shall be required to be retrofitted, at the cost of the property owner of said lot, with such features or qualities as may be established by the County as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof. In exercising the authority hereunder, the County may not impose a cost on the property owner greater than seven hundred fifty dollars ($750.00).

(2)

At County's Cost. The owner of property on which is located a surface of a structure which has been defaced with graffiti more than four (4) times in six (6) months, or the immediate area surrounding said surface, shall permit the County to enter upon and make such modifications thereto, at the County's cost, which modifications shall include such features or qualities as may be established by the County as

necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof.

(Ord. 4324 § 1 (part), 2007)

6-3619 - SEVERABILITY.

If any provision, clause, sentence, or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

(Ord. 4324 § 1 (part), 2007)