Chapter 5 — GRAFFITI ABATEMENT

The purpose and intent of this chapter is to provide a program to prevent and control the further spread of graffiti within the city, to establish a process for the removal of graffiti from real and personal property, and to assess and recover costs related to such removal. (Ord. 23-0368 § 1)

Aerosol or Pressurized Paint Container. Any aerosol container, regardless of the materials from which it is made, which is adapted or made for the purpose of spraying paint or other substance capable of defacing property. "Aerosol or pressurized paint container" does not include a container of less than six ounces capacity provided to a minor for the minor's use or possession under the supervision of the minor's parent, guardian, instructor or employer.

Enforcement Officer. Any city employee or agent of the city with the authority to enforce any provision of this code, including, but not limited to, the director of public works, code enforcement officer, and any peace officer.

Etching Solution. Any caustic cream, gel, liquid, or other solution capable, by means of a chemical reaction, of defacing, damaging, or destroying hard surfaces in a manner similar to acid.

Felt Tip Marker. Any broad tip marker pen with a tip exceeding one-eighth (1/8) of one inch in width, or any similar implement containing an ink that is not water soluble.

Graffiti. Any unauthorized inscription, writing, lettering, word, figure, mark, drawing or design that is written, marked, etched, scratched, drawn, painted or otherwise placed on any part of real or personal property, regardless of the nature of the material of that part.

Graffiti Abatement Costs and Expenses. Includes, but is not limited to, applicable court costs, attorneys' fees, costs of removal of the graffiti, costs of repair and replacement of defaced property, costs of administering and monitoring the participation of a defendant and their parents or guardians in a graffiti abatement program, disbursed reward money, and related administrative, overhead, and incidental costs incurred in performing or causing the performance of the enforcement, abatement or collection procedures defined in this chapter.

Graffiti Eradication Costs and Expenses. Graffiti abatement costs and expenses plus any law enforcement costs incurred in identifying and apprehending the person who created, caused or committed the graffiti on the publicly or privately owned real or personal property.

Graffiti Implements. An aerosol or pressurized paint container, a felt tip marker, gum label, paint stick, graffiti stick, etching solution, etching tool, or other similar devices that may be used to scar or deface property. "Graffiti implements" do not include items furnished for use in school-related activities that are part of an approved instructional program, when such items are used under controlled and supervised situations within the classroom or on the site of a supervised educational project.

Gum Label. Any sheet of paper, fabric, plastic or other substance with an adhesive backing which, when placed on a surface, is not easily removable.

Paint Stick or Graffiti Stick. Any device containing a solid form of paint, chalk, wax, epoxy, or other similar substance capable of being applied to a surface by pressure, and upon application, leaving a mark at least one-sixteenth (1/16) of one inch in width, which cannot be removed with water after it dries.

Person in Control of Real Property. An owner of the real property, a manager who is designated by the owner of the property to maintain the real property, or a renter or lessee of real property where a term of the rental agreement or lease provides that the renter or lessee is responsible for the upkeep and maintenance of the real property including painting of the property.

Real or Personal Property. Includes, but is not limited to, public or privately owned buildings or other structures, such as walls; fences; signs; retaining walls; driveways; walkways; sidewalks; curbs; street lampposts; hydrants; trees; electric, light, power, telephone or telegraph poles; drinking fountains; benches; display stands; utility boxes; and garbage receptacles.

Responsible Party. Any person, including a minor, who has been determined to have placed graffiti on real or personal property of another person. "Responsible party" also includes: a minor who has confessed to, admitted to or pled guilty or no contest to, or has been convicted by final judgment of a violation of Penal Code section 594 , 594.3 , 640.5 , 640.6 , or 640.7 , and a minor who has been declared a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 by reason of the commission of an act prohibited by Penal Code section 594 , 594.3 , 640.5 , 640.6 , or 640.7 . The parents or guardians having custody and control of a minor who is a responsible party are also "responsible parties" for the purposes of this chapter.

Unauthorized. Without the prior consent of the property owner or in violation of any law or regulation.

(Ord. 23-0368 § 1)

The city council declares that graffiti is a public and private nuisance, and may be abated pursuant to this chapter, or as otherwise provided by law. (Ord. 23-0368 § 1)

• A. It is unlawful for any person, regardless of age, to place graffiti upon any real or personal property when the graffiti is visible from any public right-of-way or from any other public or private property.

• B. It is unlawful for any person who is in control of any real or personal property within the city to knowingly allow graffiti, which is visible from any public right-of-way or from any other public or private property, to remain upon real or personal property for a period of time longer than 48 hours after having been given notice as provided for in section 5-5-9 .

• C. It is unlawful for any person, regardless of age, to aid, abet or encourage another to paint, etch or in any other manner apply graffiti upon public or private real or personal property of any kind within the city.

• (Ord. 23-0368 § 1)

The city manager is authorized to establish a comprehensive graffiti eradication program that may, but is not required to, include the following: proactive enforcement to identify, apprehend and prosecute persons who have placed graffiti on the real or personal property of another; establishment of procedures to pursue restitution of graffiti eradication costs from responsible parties; establishment of a preventive education program within local schools to prevent graffiti; establishment of an offender education program with the intent of diverting those apprehended for graffiti related offenses; establishment of a "graffiti hotline" to be used by the community to report real or personal property which has been defaced with graffiti; coordination of an "adopt an area or neighborhood" for reporting and clean-up of graffiti; and the coordination and maintenance of a graffiti wipe-out program that utilizes available resources and enlists citizen volunteers and those who are responsible for community service as an imposition of sentence or condition of probation

with the goal of cleaning graffiti from real or personal property within the city within 48 hours of its appearance.

(Ord. 23-0368 § 1)

• A. To assist enforcement officers in identifying the responsible party in incidents of graffiti, enforcement officers are authorized to request and receive any report or materials containing the names and addresses of responsible parties to the fullest extent allowed by law.

• B. The authority granted in this section includes, without limitation, the authority to receive a report from the county probation officer containing the names and addresses of parents or guardians having custody and control of minors who are responsible parties pursuant to California Government Code section 38772(c) .

• C. An enforcement officer may apply to the juvenile court for the release of the names and addresses of responsible parties who are minors.

• (Ord. 23-0368 § 1)

• A. Any responsible party as defined in this chapter shall be liable to the city for all graffiti eradication costs and expenses.

• B. All responsible parties shall be jointly and severally liable for the graffiti eradication costs and expenses on a particular property.

• C. The enforcement officer shall cause to be sent an invoice for graffiti eradication costs and expenses to a responsible party. The invoice for graffiti eradication costs and expenses shall contain:

  1. The address or location of the defaced real or personal property and the location and a description of the defaced personal property, sufficient to identify the property;

  2. A summary of the graffiti eradication actions performed;

  3. An itemized list of the graffiti eradication costs and expenses incurred;

  4. The identity of the responsible party and the basis of that determination;

  5. A description of the payment process, including the time within which and the place to which the graffiti eradication costs and expenses shall be paid;

  6. A statement advising that the graffiti eradication costs and expenses shall be a personal obligation of the party;

  7. A statement advising that the city may pursue a special collection process for the graffiti eradication costs and expenses against real property owned by the responsible party; and

  8. A description of the process by which a responsible party may protest the determination that he or she is a responsible party or the amount of the graffiti eradication costs and expenses.

• (Ord. 23-0368 § 1)

All persons who own real or personal property upon which graffiti has been placed shall cause the removal of such graffiti in accordance with this section within 48 hours after it is placed on the property. If the owner fails to do so, the city may abate and remove the graffiti on public or private property in accordance with this section.

• A. Graffiti that is visible from any public right-of-way or public or private property shall be removed in accordance with the following provisions:

  1. Removal by Property Owner. The property owner or other person in control of real property shall perform the removal with their own resources.

  2. Removal by the City With Consent of Property Owner. The city or its agents may remove graffiti upon satisfaction of the following conditions:

     • a. The property owner has shown that they are unable to remove the graffiti due to financial or physical reasons and has requested in writing that the city remove the graffiti;

     • b. The city obtains the consent of the property owner to remove the graffiti;

     • c. The property owner executes a release and right of entry form permitting such graffiti removal;

     • d. The city shall not paint or repair a more extensive area than is necessary to remove the graffiti, unless the city determines that a more extensive area needs repainting or repairing in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the property owner agrees to pay for the cost of repainting or repairing the more extensive areas; and

     • e. The owner provides paint of a specific color to match if they so desire or are able to.

  3. Removal by City Without Consent of Property Owner. An enforcement officer may order abatement of graffiti from real or personal property when the owner does not successfully remove the graffiti with his or her own resources, or satisfy the conditions of subsection (A) (2) of this section.

• B. Standards for Graffiti Removal. Graffiti shall be removed or completely covered in a manner that renders it inconspicuous. When graffiti is painted out, the color used to paint it out, to the extent available and practicable, shall match the original color of the surface, or the surface shall be completely repainted with a new color that is aesthetically compatible with existing colors and architecture. The removal shall not leave shadows and shall not follow the pattern of the graffiti such that the letters or similar shapes remain apparent on the surface after graffiti markings have been removed. If the area is heavily covered with graffiti, the entire surface shall be repainted.

• (Ord. 23-0368 § 1)

Abatement of graffiti and assessment of graffiti abatement and/or eradication costs shall be in accordance with the following procedure:

• A. Following a report of graffiti from any source, an enforcement officer shall issue a notice of intent to abate the graffiti as a public nuisance, and shall serve such notice to the owner or occupant of the premises. The notice shall be sent by certified mail, return receipt requested.

• B. The notice of intent shall be substantially in the following form:

NOTICE OF INTENT TO ABATE NUISANCE—GRAFFITI

(Name and address of person notified)

(Date)

NOTICE IS HEREBY GIVEN that you are required by Solvang Municipal Code Title 5 , Chapter 5 to, at your sole expense, remove or paint over the graffiti in existence on the property located at (address), which is visible to public view, by (date). If you fail to do so, the City or its agents will enter your property and remove or paint over the graffiti. The cost of such removal and/or painting will be assessed against you and your property, and such costs will constitute a lien upon such property until paid.

You may request a hearing to contest this notice. To request a hearing, you must submit a written request to the City by (date). If a request is not received by this date by the City, the City shall have the authority to proceed with the abatement of the graffiti inscribed on your property without further notice or hearing, and at your expense.

Your presence is not required at the hearing. In lieu of attendance, you may submit a sworn written statement executed under penalty of perjury, as to why you are not responsible for the removal of the graffiti, and/or assessment of costs of removal and/or painting. If you do not appear in person at the hearing, your sworn written statement as described will be considered as your sole testimony.

• C. Upon receipt of a request for hearing to contest a notice of intent, the city shall set a date and time for the hearing and notify the person requesting the hearing of the date, time, and location of the hearing. All hearings under this chapter shall be held before the city manager or designee, who shall hear all facts and testimony he or she deems pertinent. Said facts and testimony may include testimony on the location of the graffiti and the circumstances concerning its placement on the real or personal property. The city manager shall not be limited by the technical rules of evidence. After the hearing, the city manager shall serve notice of his/her written decision to the person requesting the hearing, or other affected parties, within 15 working days.

• (Ord. 23-0368 § 1)

• A. Following abatement, the city shall send an invoice to the owner of the real or personal property upon which graffiti has been abated by the city. The notice shall specify all graffiti abatement and eradication costs. The notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments. The notice shall be sent by certified mail to the property owner, if the property owner's identity can be determined from the county assessor's or county recorder's records. If the owner of the property, after diligent search, cannot be found, the notice may be served by posting a copy of the notice upon the property in a conspicuous place, for a period of 10 days. The notice shall also be published pursuant to Government Code section 6062 in a newspaper of general circulation that is published in Santa Barbara County.

• B. The total cost of graffiti abatement and eradication, including all administrative costs, shall be paid by the owner or other person in control of the real property or the owner of personal property upon which graffiti has been abated, within 30 calendar days after service of notice.

• C. Pursuant to Government Code section 38773.5 , the total cost of abatement and eradication, including all administrative costs, shall constitute a special assessment against the property subject to the graffiti abatement, if not paid in full within 30 days after service of the invoice. After the assessment is made, it shall constitute a lien on the property subject to the graffiti abatement. Such special 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 procedures and sale in case of delinquency as provided for ordinary municipal taxes. However, if any real property to which a special assessment relates has been transferred

or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of taxes would become delinquent, then the special assessment shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection.

• D. Instead of making the cost of abating a nuisance a special assessment against the property subject to graffiti abatement, the city may make the cost the personal obligation of the property owner or other person creating, causing, committing, or maintaining the nuisance. In such a case, all of the procedures of this chapter apply except those specially related to assessment of the property. The property owner or person in control will remain responsible for all abatement and eradication costs until reimbursement is collected by the city from the person creating, causing or committing the nuisance.

• (Ord. 23-0368 § 1)

Nothing in this chapter shall be deemed to prevent the city council from authorizing the city attorney to commence any other available civil or criminal proceedings to abate a public nuisance in addition to or alternative to proceedings set forth in this chapter. At the time the abatement action is filed, the city attorney may elect to seek recovery of attorneys' fees incurred in a graffiti abatement action under this chapter. In a case where the city attorney makes this election, the prevailing party shall be entitled to recover attorneys' fees. In no event shall the award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action. (Ord. 23-0368 § 1)

• A. It is unlawful for any person under the age of 18 years of age to possess any graffiti implement while on any school property, grounds, facilities, buildings, or structures upon public or 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 graffiti implements by a minor attending or traveling to or from a school at which the minor is enrolled if the minor is participating in a class or activity at the school that formally requires the possession of graffiti implements. The burden of proof in any prosecution for violation of this section shall be upon the minor student to establish the need to possess a graffiti implement.

• B. It is unlawful for any person to possess any graffiti implement while in or upon any public facility, park, playground, recreational facility, or other public building or structure owned or operated by the city or while in or within 50 feet of an underpass, bridge abutment, storm drain, or similar types of infrastructure unless otherwise authorized by the city.

• (Ord. 23-0368 § 1)

• A. Pursuant to section 53069.5 of the Government Code, the city may offer a reward of up to $500 for any person or persons who furnish information to the city leading to the arrest and conviction, adjudication as a juvenile offender, or confession of any person for violation of section 5-5-4 or California Penal Code section 594 . Such information may be furnished in whatever method that provides for adequate identification of the violator(s) which may include photo or video evidence. 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, may constitute a conviction.

• B. Moneys collected from penalties shall be deposited into the city's general fund, and those moneys may be utilized to pay for the monetary reward and graffiti control program.

• C. Claims for rewards under this section shall be filed with the city clerk. Each claim shall:

  1. Specifically identify the date, location and kind of property damaged or destroyed;

  2. Identify the person who was convicted of or who confessed to violating section 5-5-4 or California Penal Code section 594 ;

  3. Identify the court and the date upon which the conviction occurred or the place and the date of the confession.

• D. No claim for a reward shall be allowed unless an authorized representative of the city investigates and verifies the accuracy of the claim and recommends that it be allowed. The investigation must determine that the claimant's information was relevant and directly responsible for the arrest and conviction of the suspect.

• (Ord. 23-0368 § 1)

This chapter is not intended to conflict with California law, and shall be construed to avoid conflict with or preemption by California law. If any section, subsection, sentence, clause, phrase or portion of this chapter 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 chapter, and to this end the provisions of this chapter are severable. 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, clauses, phrases or portions be declared invalid or unconstitutional.

(Ord. 23-0368 § 1)