San Marcos Municipal Code Ch. 10.30 Graffiti

For the purpose of this chapter, the following words and phrases shall have the meanings ascribed to them in this section unless it is apparent from the context that they have a different meaning:

City Manager means the City Manager of the City of San Marcos or the City employees, departments or contractors authorized by the City Manager to enforce the provisions of this chapter.

Expense of Abatement includes, but is not limited to, court costs, attorney's fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, the law enforcement costs incurred by the City and/or its law enforcement agency, and any and all costs and expenses associated with the foregoing.

Graffiti Implement includes any aerosol paint container and/or accessories used specifically in conjunction with aerosol paint containers, felt tip marker, paint stick, paint brushes, paint rollers or similar apparatus, or glass etching cream or related glass etching product or accessory.

Graffiti or Other Inscribed Material includes any unauthorized inscription, word, figure or design that is written, marked, etched, scratched, drawn, painted, placed on or affixed to any real or personal property.

Minor or Other Person means a minor or other person who has confessed to, admitted to, or pled guilty or nolo contendere to a violation of Sections 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code, or a minor convicted by final judgment of a violation of Sections 594, 594.3, 640.5, 640.6 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 Sections 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code.

The City Council declares graffiti is a public nuisance, subject to abatement as prescribed in this chapter.

(a)

It shall be unlawful for any person to paint, inscribe, mark, place or otherwise apply or affix graffiti on or deface any real or personal property in the City, public or private.

(b)

The City shall notify a property owner of the existence of a graffiti nuisance on his or her property in writing by first class mail to the last owner of record of the parcel of land on which the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current.

(c)

It shall be unlawful for the owner of any private property to permit graffiti to remain in a manner visible to persons using any public rights-of-way in the City for more than 15 calendar days after City has given the owner written notice to remove the graffiti.

(a)

It shall be unlawful for any person under the age of 18 years to have in his or her possession any Graffiti Implement while upon public property or while upon private property without the consent of the owner of such property whose consent is given in advance and whose consent shall be given as to the person's presence while in the possession of a Graffiti Implement.

(b)

The foregoing provision shall not apply with respect to felt tip markers while a person is attending, or travelling to or from a school at which the person is enrolled, if the person is participating in a class at said school which has, as a written requirement of said class, the need to use felt tip markers.

(a)

No person, firm or entity engaged in commercial enterprise shall display for sale, trade, or exchange, any Graffiti Implement except in an area from which the public shall be securely precluded without employee assistance. Two such acceptable methods for displaying a Graffiti Implement 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) in an enclosed area behind a sales or service counter from which the public is precluded from entry.

(b)

Penalties for Violation. Any person or retailer who violates any provision of this Section 10.30.040 shall upon conviction thereof, be guilty of a misdemeanor offense, punishable as provided in Section 1.12.010. It shall be the responsibility of employers to disseminate information concerning the provisions of this section to their employees.

(Amend. of 2-5-2025(1))

(a)

No person shall store any Graffiti Implement except in either: (1) a completely enclosed room which shall, at all times except during access or substantial occupancy by the owner or an authorized adult representative of the owner, remain securely locked; or (2) in a completely enclosed cabinet or other storage device which shall, at all times except during access by the owner or an authorized adult representative of the owner, remain securely locked. For the purposes of this section, an owner or authorized representative of the owner, shall be deemed to have substantial occupancy of a room even during short periods of absence if the room is part of a larger structure which is occupied by the owner.

(b)

Penalties for Violation. Any person or retailer who violates any provision of this Section 10.30.050 shall upon conviction thereof, be guilty of a misdemeanor offense, punishable as provided in Section 1.12.010. It shall be the responsibility of employers to disseminate information concerning the provisions of this section to their employees.

(Amend. of 2-5-2025(1))

(a)

Whenever the City Manager determines that graffiti is located on public or private property within the City in a manner visible to persons using any public right-of-way, the City Manager is authorized to provide for the removal of the graffiti or, at the Manager's discretion, furnish or otherwise provide the owner with materials necessary to accomplish such removal. The City Manager may serve on the property owner a Notice of Violation and Compliance Order under San Marcos Municipal Code Sections 1.12.010 or 1.12.020 which may include a charge for the cost of issuance of the Notice. In addition to these remedies, or any other remedy provided under the Municipal Code, the City Manager may issue an administrative citation, which may include a charge for the cost of the issuance of the citation, and pursue an administrative enforcement action under Municipal Code Chapter 1.14.

(b)

The City Manager shall not undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located.

(c)

Prior to the removal of the graffiti, the City Manager shall obtain the written consent of the property owner, and the owner shall execute an appropriate release prepared by the City Attorney.

(a)

A City code compliance officer or official (hereinafter "enforcement officer") may record with the County Recorder's Office a notice against a property which is the subject of an administrative enforcement action pending with the City of San Marcos.

(b)

A notice of pending administrative action shall be on a form approved by the City Manager and shall describe the nature of the administrative action and refer to the Municipal Code governing the pending administrative action.

If an owner, occupant or agent refuses permission to enter, inspect and abate a graffiti nuisance on a property, the City Manager may seek a warrant pursuant to court order or any other procedure as authorized by law and as directed by the City Attorney.

If an enforcement officer determines that compliance with the Notice of Violation and Compliance Order or Administrative Abatement Order has been achieved, the enforcement officer shall notify the responsible party and file a report with the City Manager indicating that compliance has been achieved and the date of the City's final inspection of the property.

In the event such public nuisance is not abated on or before the date described in the Notice of Violation and Compliance Order or Administrative Abatement Order, the enforcement officer shall, and is hereby authorized to direct the City Attorney to secure the appropriate court order for the abatement thereof by City agents, employees or by private contract. Any such abatement action shall be conducted in accordance with the current statutory and decisional law and the order of the issuing court.

The enforcement officer shall cause to be kept an itemized account of the cost of such abatement. Unless waived in writing by the parties, the enforcement officer shall schedule an Administrative Cost Hearing to certify abatement costs pursuant to Chapter 1.14. At least ten days prior to the Administrative Cost Hearing certifying costs, a Notice of Administrative Cost Hearing shall be served by certified mail on the parties and the property owner, if the property owner's identity can be determined from the county assessor's or county recorder's records, and shall include a copy or copies of the itemized account of the cost of abatement. A party or the property owner may contest the abatement costs at the Administrative Cost Hearing. Pursuit of such a contest by a party or property owner is necessary to exhaust the administrative remedies in challenging the validity of any lien or special assessment against the property.

If the City intends to make the expense of abatement a personal obligation of the Minor, parent or guardian, or other person, or if the City intends to make the expense of abatement a lien or assessment against the property on which the nuisance is maintained, or against a parcel of land owned by the Minor or other person or by the parent or guardian having custody and control of the Minor, the City shall serve notice of same and of the Administrative Cost Hearing to said person in the same manner as summons in a civil action pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. If the Minor or other person, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the Minor or other person, in a conspicuous place, for a period of ten days. The notice shall also be published pursuant to Section 6062 in a newspaper of general circulation that is published in the county in which the property is located. If the parent or guardian having custody and control of the Minor, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property owned by the parent or guardian having custody and control of the minor, in a conspicuous place, for a period of ten days. The notice shall also be published pursuant to Section 6062 in a newspaper of general circulation that is published in the county in which the property is located.

On the date and time set for the Administrative Cost Hearing, the Hearing Officer shall consider the abatement cost report of the enforcement officer together with any appropriately made objections, and shall confirm, reject, or modify the report by issuing a written abatement costs order in accordance with this chapter and Section 1.14.110.

The City Council may issue a Cost Recovery Order which assesses the cost of abatement, as confirmed, the costs of processing and recording the lien or assessment, the costs of notice and citation, and any expense of abatement as defined herein as a:

(a)

Personal obligation of the real property owner, Minor, parent or guardian having custody and control of the Minor or other person;

(b)

Lien against the subject property or real property of the Minor, parent or guardian having custody or control of the Minor or other person; and

(c)

Special assessment against the subject property or real property of the Minor, parent or guardian having custody or control of the Minor or other person.

The costs assessed under the Cost Recovery Order may be collected by the City by any or all of the following or any other lawful means:

(a)

Recordation of a lien or special assessment pursuant to Section 10.30.160;

(b)

Civil action by the City; and/or

(c)

Any other legally authorized procedure for the abatement of nuisance or collection of costs associated therewith.

A graffiti abatement lien or assessment shall be recorded in the County Recorder's office in the county in which the parcel of land is located. The lien or assessment shall specify the amount of the lien or assessment; the name and agency on whose behalf the lien or assessment is imposed; the date of the abatement order; the street address, legal description, and assessor's parcel number of the parcel on which the lien or assessment is imposed; and the name and address of the recorded owner of the parcel. If the lien or assessment is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified above shall be recorded.

Any violation of the terms of Section 10.30.020 is hereby determined to be an act of willful misconduct as defined by California Civil Code § 1714.1 for which victims suffering damages resulting from such willful misconduct shall have a right to reimbursement from the violator for said damages. Further, any parent or guardian, having custody and control of a minor, which minor violates the terms of Section 10.30.020, resulting in damages to property in the amount of $25,000.00 or less per offense, shall be jointly and severally liable for such damages as provided in California Civil Code § 1714.1. The City may, at the election of the City Manager, undertake to recover damages on behalf of any victim suffering damages as a result of any violation of the terms of this article.

In lieu of, or as a part of, prosecuting a civil action pursuant to the terms of Chapter 10.30 hereof, the City Attorney, upon the recommendation of the City Manager, shall be authorized to offer a minor or his or her parent or guardian an option to perform such community service as the City Manager deems appropriate. Such community service, if offered at all, shall have the purpose of advancing a solution to the problems of graffiti abatement and removal.

(a)

Storage of Glass Etching Cream. Every person who owns, conducts, operates or manages a retail commercial establishment selling glass etching cream or any commercially available product that can be used to etch glass (a "glass etching product"), whether sold separately or in a kit, shall store or cause to be stored such glass etching cream or glass etching product under lock and key in an area viewable by, but not accessible to, the public in the regular course of business without employee assistance, pending the legal sale or disposition of such glass etching cream or glass etching product.

(b)

Prohibition of Sale to Minors. No person who owns, conducts, operates or manages a retail commercial establishment selling glass etching cream or any commercially available glass etching product, whether sold separately or in a kit, shall sell or cause to be sold any such glass etching cream or glass etching product to any person who has not yet attained the age of 18 years.

(c)

Penalties for Violation. Any person or glass etching cream or glass etching product retailer who violates any provision of this Section 10.30.190 shall, upon conviction thereof, be guilty of a misdemeanor offense, punishable as provided in Section 1.12.010. It shall be the responsibility of employers to disseminate information concerning the provisions of this section to their employees.

(Ord. No. 2010-1331, 2-9-10; Amend. of 2-5-2025(1))

(a)

The San Diego County Probation Department and/or its Probation Officer(s)s are hereby authorized, on behalf of the City, to collect from the minor, the minor's estate and/or the minor's parent or guardian, the City's graffiti abatement costs and expenses through San Diego County Juvenile Court proceedings, and to promptly transfer said funds to the City.

(b)

Upon the request of the San Diego County Probation Department and/or its Probation Officer(s), the City shall promptly transmit data concerning the City's expenditure of resources for graffiti abatement in any particular case for collection pursuant to this part. The data provided will be sufficient to enable the San Diego County Probation Department and/or its Probation Officer(s) to calculate the costs to the City for that particular graffiti abatement effort and to recover the same through such Juvenile Court proceedings.

(Ord. No. 2015-1409, 6-23-15)

(a)

Findings regarding the costs and expenses associated with the abatement of graffiti in the City will be reviewed at least once every three years to ensure their accuracy and adequacy. Recommendations will be made regarding the average costs per unit of measure incurred by the City for the removal and abatement of graffiti and other inscribed material, and for the repair and replacement of property of the type and/or nature frequently defaced with graffiti or other inscribed material which cannot be removed cost effectively.

(b)

Graffiti Abatement Cost finding updates shall be adopted by resolution of the City Council. Immediately after adoption, the City Clerk shall forward a certified copy of the adopted cost findings to the Clerk of the San Diego County Juvenile Court and the San Diego County Probation Department, for use by those bodies.

(Ord. No. 2015-1409, 6-23-15)