Sanger Municipal Code § 38-71 Intent and purpose

Footnotes:

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Editor's note— Ord. No. 885, § 1, adopted Sept. 16, 1993, set out provisions intended to add Art. IV to Ch. 12. At the editor's discretion, and in light of the recent recodification, the provisions set out in Ord. No. 885 have been codified as Art. II of Ch. 38.

(a) Government Code § 53069.3 authorizes cities and counties to provide for the removal of graffiti and other inscribed material from public and privately owned permanent structures located on public or privately owned real property within such city or county. The city council finds that graffiti on public and privately owned property is obnoxious in that it furthers blight, encourages acts of vandalism, and depreciates the value of the surrounding properties.

(b) The council further finds and determines that unless graffiti is quickly removed, other properties soon become the target of graffiti. The existence of graffiti tends to reduce the value of property, promotes blight and the deterioration of the surrounding properties, invites further vandalism and results in a loss of pride in affected neighborhoods. The defacement of property with graffiti is most often committed by persons under the age of 18 years using aerosol or pressurized containers and indelible markers and pens.

(Ord. No. 885, § 1, 9-16-93)

For the purposes of this article, the following words and terms are defined as follows:

Abatement and related administrative costs or expense of abatement includes, but is not limited to, court costs, attorney's fees, cost of removal of the graffiti or other inscribed material or vandalism, costs of repair and replacement of defaced or otherwise vandalized property, and the law enforcement costs incurred to the city in identifying and apprehending the minor.

Aerosol paint container means any aerosol container, regardless of the material from which it is made, which is adopted [adapted] or made for the purpose of spraying paint or other substance capable of defacing property.

Defacement means the intentional altering of the physical shape or appearance of property without the consent of the owner.

Graffiti means any unauthorized inscription, work, figure or design that is marked, etched, scratched, drawn or painted on any surface.

Graffiti implement means an aerosol paint container, an indelible marker, a paint stick, an aerosol paint activator tip, a masonry drill bit, a glass drill bit, a carbide drill bit, a glass cutter, a grinding stone, an awl, a chisel, a carbide scribe, or any other substance or implement that can be used to make permanent scratches on any surface.

Graffiti or other inscribed material means any unauthorized inscription, word figure or design that is written, marked, etched, scratched, drawn or painted on any real or personal property.

Indelible marker means any marker, pen or similar implement containing a fluid which is not soluble in water and having a flat, pointed or angled writing surface of a width of one-quarter inch or greater.

Minor means a person under 18 years of age.

Paint stick means a device containing a solid form of paint, chalk, epoxy, or other similar substance capable of being applied to a surface by pressure, and upon application, leaving a mark at least one-quarter of an inch in width, visible from a distance of 20 feet, and not soluble in water.

Responsible adult means the parent or legal guardian of a minor.

Vandalism means the willful or ignorant destruction of real or personal property, including, but not limited to, defacement, damage or destruction caused by graffiti or other inscribed material.

(Ord. No. 885, § 1, 9-16-93; Ord. No. 1037, § 1, 3-6-03; Ord. No. 1064, § 1, 5-5-05; Ord. No. 1093, § 1, 9-20-07)

(a) It is unlawful for any person to apply or affix graffiti, or otherwise commit vandalism upon any wall, street, bridge, building, fence, gate, sign, structure, vehicle or other facility in the city.

(b) The city shall, in writing, notify the legal owner of the property which contains the graffiti to remove the graffiti within 24 hours of the mailing or posting of the notification. The notification shall be sent to the address of the legal owner, if ascertainable from public records, or to the address of the property itself, or shall be posted on the property in a conspicuous place. The property owner shall be responsible to abate the graffiti by painting over it with paint that will completely cover the graffiti and reasonably match the paint of the wall or part of the structure which contains the graffiti. Should the property owner fail to promptly remove the graffiti, the city may elect to remove the graffiti and recover the costs of the removal from the property owner or person causing the graffiti or their responsible adult as authorized in section 38-77.

(Ord. No. 885, § 1, 9-16-93; Ord. No. 1064, § 2, 5-5-05; Ord. No. 1093, § 2, 9-20-07)

No person shall sell, offer to sell, cause to be sold, give or lend any aerosol paint container, pressurized container of paint, or any indelible marker to any minor who is not accompanied by a responsible adult.

(Ord. No. 885, § 1, 9-16-93; Ord. No. 1037, § 2, 3-6-03)

(a) It is unlawful for any minor to possess any graffiti implement:

(1) While upon public property; or

(2) While upon private property without the consent of the owner of such private property. Such consent must be given in advance and must authorize the minor's presence while in the possession of a graffiti implement.

This subsection shall not apply if possession of the graffiti implement is for a lawful purpose. Lawful purpose includes:

(i) While the minor is attending or traveling to or from a school at which the minor is enrolled, if the minor is participating in a class at said school which has, as a requirement of said class, the need to use graffiti equipment; and

(ii) While the minor is attending or traveling to or from a place of employment at which the minor is employed, if, as a requirement of the employment, the minor has need to use the graffiti implement.

(b) This section is not intended to conflict with Penal Code §§ 594.1 and 594.2.

(Ord. No. 885, § 1, 9-16-93; Ord. No. 1037, § 3, 3-6-03)

(a) Persons engaged in the retail sale of aerosol or pressurized containers of paint and/or indelible markers shall display, at the location of retail sale, a sign clearly visible and legible to employees and customers reading: It is unlawful for any person to sell, lend or give to any minor under the age of 18 years, not accompanied by a responsible adult, an aerosol or pressurized container of paint weighing six ounces or less (net weight of contents), or in [an] indelible marker.

(b) Persons engaged in the retail sale of aerosol or pressurized containers of paint and/or indelible markers shall store or cause such paint or markers to be stored in [an] area viewable by, but not accessible to the public in the regular course of business without employee assistance, pending legal sale or disposition of such paint and/or markers.

(Ord. No. 885, § 1, 9-16-93; Ord. No. 1037, § 3, 3-16-03; Ord. No. 1064, § 3, 5-5-05)

Notwithstanding the provisions set forth in sections 38-7 through 38-7.7, pursuant to Government Code §§ 38722, 38773.2, 38773.6 and 53069.3, the following procedures may be utilized by the city for the abatement of graffiti or other inscribed material and vandalism:

(1) If the city determines that graffiti or other inscribed material or vandalism exists on real or personal property, the city may use city funds in accordance with section 38-71 to remove the graffiti or repair or replace the vandalized property.

(2) If the graffiti or other inscribed material or vandalism was created, caused, or committed by a minor, the city may recover the abatement and related administrative costs in accordance with the following procedures:

a. Either before removal of the graffiti or other inscribed material or vandalism by the city or after removal by the city of the graffiti or other inscribed material or vandalism pursuant to section 38-71, the city manager, or his or her designee, shall give the minor and the parent or guardian having custody and control of the minor notice of a hearing to be held by the city manager, or his or her designee, which may include an outside "hearing officer" contracted for by the city, for the purpose of showing cause why the city should not recover abatement and related administrative costs, from the minor and the parent or guardian having custody and control of the minor. Following notice, the hearing shall be held at the time, date, and place designated and at such hearing the minor and the parent or guardian having custody and control of the minor may each be heard and provided with the opportunity to show cause why the city should not recover abatement and related administrative costs from the minor and the parent or guardian having custody and control of the minor. Following the hearing, the individual who conducted the hearing shall determine whether the city should recover abatement and related administrative costs from the minor and the parent or guardian having custody and control of the minor.

b. Notice of the hearing shall be served either personally or by mailing a copy of such notice and order by certified mail, postage prepaid, return receipt requested, to the address of the minor and the parent or guardian having custody and control of the minor, as known by the city manager, or the city manager's designee, by virtue of reliable information. Service by certified mail in the manner provided herein shall be effective on the date of mailing. If the notice is served by personal service, the hearing shall not be held less than 72 hours after the notice is served. If the notice is served by certified mail, the hearing shall not be held less than five days after the notice is served. The failure of the minor or the parent or guardian having custody and control of the minor to receive the notice prescribed herein shall not affect the validity of any proceedings taken under this article. In addition, notice to the parent or guardian having custody or control of the minor in the manner prescribed herein shall constitute notice to the minor, irrespective of whether the minor actually receives notice.

c. If the individual who conducted the hearing determines that the city should recover the abatement and related administrative costs from the minor and the parent or guardian having custody and control of the minor, the city shall provide an accounting of the funds along with a demand for payment to the minor and the parent or guardian having control of the minor. The parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor for the abatement and related administrative costs, pursuant to Government Code §§ 38772, 38773.2, and 38773.6.

d. In addition to any other remedy provided for in this article or available at law, the abatement and related administrative costs shall constitute a personal obligation of the minor and the parent or guardian having custody and control of the minor, and may be collected by any lawful method.

e. In the event the abatement and related administrative costs have not been paid within 30 days from the date of issuing an accounting and demand for payment, upon resolution of the city council confirming any amount unpaid, the amount unpaid shall constitute a special assessment pursuant to Government Code § 38773.6 and become an assessment lien against a parcel of land owned by the minor or the parent or guardian having custody and control of the minor. Notice of the special assessment against the parcel of land to which it relates shall be recorded in the county recorder's office of the county in which the parcel of land is located, and a copy shall be turned over to the tax collector for the county wherein the parcel of land is located. Notice of the special assessment shall specify: the amount of the special assessment; identify the city as the agency on whose behalf the assessment is imposed; the date of the council resolution; the street address, legal description, and assessors parcel number of the parcel on which the assessment is imposed; the name and address of the recorded owner of the parcel; and that the assessment has been imposed pursuant to chapter 38, article II. A copy of the council resolution may also be recorded and turned over to the tax collector.

f. Upon notice to the tax collector of the county, the assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment.

g. In accordance with Government Code § 38773.6, if any real property to which the abatement and related administrative costs relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance for value has been created and attaches thereon prior to the date on which the first installment of the taxes would become delinquent, then the abatement and related administrative costs shall not result in a lien against the real property, but shall instead be transferred to the unsecured role for collection.

h. If the assessment is paid through a special pay-off directly to the city, the city shall record a notice of satisfaction containing the relevant information specified in subsection (2)e.

(Ord. No. 885, § 1, 9-16-93; Ord. No. 1037, § 4, 3-6-03; Ord. No. 1093, § 3, 9-20-07)

Police diversion program: community service with minimum hours and parental involvement. In lieu of, or as part of, requesting prosecution of a petition to declare a minor to be a ward of the court under Welfare and Institutions Code § 602 (including, but not limited to, offenses which, in the opinion of the police chief, constitute a violation of this article), the police chief or his or her designated representative shall be authorized to order said minor to perform such community service as the police chief deems appropriate, but which community service shall contain the following minimum elements:

(a) The minor shall perform not less than 20 hours nor more than 100 hours of community service.

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

(c) The entire period of community service shall be performed under the supervision of a community service provider approved by the police chief.

(Ord. No. 885, § 1, 9-16-93; Ord. No. 1037, § 5, 3-6-03)

The procedures set forth in this article are not exclusive and nothing contained herein shall be deemed to preclude the city from initiation of any civil or criminal action or from the pursuit of any available remedy.

(Ord. No. 1037, § 6, 3-6-03)

The city may pay a reward, as established by resolution of the city council, to any person who provides information which leads to the arrest or conviction of a person who applied graffiti in the city.

(Ord. No. 1037, § 7, 3-6-03; Ord. No. 1106, § I, 11-6-08)

If any section, subsection, sentence, clause, phrase or portion of this article is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The city council declares that it would have adopted each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Ord. No. 1037, § 8, 3-6-03)