Tracy Municipal Code Ch. 3.48 Graffiti Control

(a) The purpose of this chapter is to provide a program and enforcement tools, in addition to those already provided by state law, for removal of graffiti from walls and structures on both public and private property and to prevent and control the further spread of graffiti in the City. The increase of graffiti on both public and private buildings, structures and places is creating a blight within the City which results in deterioration of property and business values for adjacent and surrounding properties all to the detriment of the City.

(b) In order to prevent graffiti and to provide an immediate and practical method of combating the effects of graffiti vandalism on public and privately owned structures and real property, the City Council hereby finds that graffiti is detrimental to property values, degrades the community, causes an increase in crime, is inconsistent with the City'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.

(c) The City Council declares its intent, through the adoption of this chapter, to give notice to all who disregard the property rights of others that the City will strictly enforce all laws prohibiting graffiti, including but not limited to Section 594, 594.1 and 640.5 of the California Penal Code, Section 13202.6 of the California Vehicle Code, and the provisions of this chapter.

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

As used in this chapter, the terms set forth below are defined as follows:

"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 substance capable of defacing property.

"City" means the City of Tracy.

"City Clerk" means the City Clerk of the City of Tracy.

"City Council" means the City Council of the City of Tracy.

"City Manager" means the City Manager of the City of Tracy or his/her designee.

"Felt tip marker" means any marker or similar implement with a tip which is greater than one-quarter inch, containing ink or other pigmented liquid.

"Graffiti" means any unauthorized inscription or act, as defined in Government Code Section 53069.3, which results in the altering or defacing of any real or personal property through the use of paint, spray paint, markers, objects or other substances capable of destroying property, which acts shall include, but not be limited to, the writing, defacing, marring, inscribing, scratching, painting or affixing of other markings on buildings or structures, including, but not limited to, walls, fences, windows, signs, retaining walls, driveways, walkways, sidewalks, curbs, curbstones, lamp posts, poles, signs, billboards, hydrants, trees, electric light or power or telephone or telegraph poles, fire alarms, traffic, telephone or transportation control panels, drinking fountains, parking meters or refuse receptacles.

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

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

(a) It shall be unlawful for any person who owns or is otherwise in control of any property within the City to permit or allow any graffiti to be placed upon or remain on any permanent structure located on such property when the graffiti is visible from the street or other public or private property.

(b) It is unlawful for any person to paint or chalk, or otherwise apply graffiti, as defined in Section 3.48.020, upon structures of any kind within the City.

(c) It shall be unlawful for any person, regardless of age, to aid, abet or encourage another to paint, etch or in any other manner apply graffiti upon structures or surfaces of any kind within the City.

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

(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 inch or more in width shall keep such markers in a location that is in an area viewable by, but not accessible to the public without the assistance of the employees, agents, or other authorized representatives selling such paint and/or markers.

(b) It shall be unlawful for any person, firm or corporation, except a parent or legal guardian, to sell, give away or in any way furnish to another person, who is in fact under the age of eighteen (18) years, any aerosol container of paint weighing six (6) ounces or less (net weight of contents) that is capable of defacing property, without first obtaining bona fide evidence of majority and identity. For the purposes of this subsection, "bona fide evidence of majority and identity" is any document evidencing the age and identity of an individual which has been issued by a federal, state or local government entity, and includes, but is not limited to, a driver's license, a registration certificate issued under the Federal Selective Service Act, or an identification card issued to a member of the armed forces.

(c) It shall be unlawful for any person under the age of eighteen (18) years to purchase an aerosol container of paint weighing six (6) ounces or less that is capable of defacing property.

(d) It is unlawful for any person, regardless of age, to possess, with the intent to deface property, any aerosol container of paint, or felt tip marker pen or other indelible ink marker, any pressurized container designed to propel liquid, any spray activator capable of being attached to an aerosol paint container, or any etching tool as defined by California Penal Code Section 594.2(a) or any other device capable of scarring glass, metal, concrete or wood, while on a public highway, street, alley, or way, or any other public place, regardless of whether such person is or is not in any automobile, vehicle or other conveyance.

(e) No person shall have in his/her possession any aerosol spray paint container having any substance commonly know as paint or dye, or marker pens with tips exceeding one-quarter inch in width, while in any public park, playground, swimming pool, or recreational facility or other public building owned or operated by the City, or while loitering in or near an underpass, overpass, bridge abutment, storm drain, and other similar types of infrastructures not normally used by the public. This does not apply to authorized employees of the City, nor authorized employees of an individual or company under contract with the City which requires the use of such materials.

(f) No person shall have in his/her possession any aerosol paint container having any substance commonly known as paint or dye while on any school property, grounds, facilities, buildings, or structures, nor in the areas immediately adjacent to these specified locations. This does not apply to authorized employees of the school, nor authorized employees of an individual or company under contract with the school which requires the use of such materials.

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

Any person, organization, company, firm, or association engaged in the retail sale of aerosol paint containers and other liquid substances or markers with a marking tip of one-quarter 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 (18) YEARS, WHO IS NOT ACCOMPANIED BY A RESPONSIBLE PARENT OR LEGAL GUARDIAN, AN AEROSOL PAINT CONTAINER OR OTHER LIQUID SUBSTANCE OR MARKERS WITH A MARKING TIP OF ONE-QUARTER (1/4) INCH OR MORE IN WIDTH, CAPABLE OF DEFACING PROPERTY.

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

(a) A violation of this chapter is unlawful and a misdemeanor and punishable as set forth in section 1.04.030.

(b) Community service may be imposed and performed, at the discretion of the court, in lieu of any penalties and punishments imposed as a result of a conviction for, or a guilty or nolo contendere plea to a misdemeanor violation of this chapter. The amount of community service will be based on the outstanding balance of fines owed as determined by the minimum wage rates set by the U.S. Department of Labor Fair Labor Standard Act.

(c) "Conviction" shall mean the conviction in a court of law of a person charged with the crime of inscribing graffiti on a structure or in the case of a juvenile, the judgment or finding of the Juvenile Court that the juvenile inscribed graffiti on a structure within the City.

(Ord. 1040 § 5 Exh. E (part), 2002; § 1, Ord. 953 C.S., eff. May 1, 1997)

(a) The City Council finds and declares that graffiti that is visible from public property, public right-of-way or private property open to the public in the City is declared to be a public nuisance and may be abated according to the provisions and procedures contained in this chapter.

(b) Pursuant to Government Code section 53069.3, the City Manager is hereby authorized to use general City funds to remove graffiti or other inscribed material from publicly or privately owned real or personal property located within the City and to replace or repair public or privately owned property within the City that has been defaced with graffiti or other inscribed material that, in the opinion of the Public Works Director, cannot be removed cost effectively.

(c) The City Manager may use such general fund moneys only for the removal of the graffiti or other inscribed material itself or, if the graffiti or other inscribed material cannot be removed cost effectively, the repair or replacement of the portion of the property that was defaced, and is not authorized to use said funds for the painting, repair, or replacement of other parts of the property that were not defaced.

(d) The removal, repair, or replacement may be performed, in the case of publicly owned real or personal property, only after securing the consent of the public entity having jurisdiction over the property, and in the case of privately owned real or personal property, only after securing the consent of the owner or possessor, or as provided in section 3.48.110.

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

Private property owners shall remove graffiti from their property, at their expense, within ten (10) calendar days after notice from the City to remove such graffiti. If the owner fails to remove such graffiti, the City may cause the removal in accordance with the provisions of this chapter.

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

(a) The notice shall be in substantially the following form:

NOTICE OF INTENT TO REMOVE GRAFFITI

(Name and address of person notified)

Date:

A NOTICE IS HEREBY GIVEN that you are required by Tracy Municipal Code Section 3.48.080, at your expense, to remove or paint over the graffiti in existence on the property located at (address), which is visible to public view, within ten (10) calendar days after receipt of this notice. If you fail to do so, City employees or private contractors employed by the City will enter upon your property and abate the public nuisance by removal or painting over the graffiti. The cost of the abatement by the City employees or private contractors will be assessed upon your property and such costs may be recoverable in accordance with the provisions of the Tracy Municipal Code. All persons having any objection to, or interest in, said matters are hereby notified to file an appeal to the City Manager or his/her designee under section 1.12.010 within forty-eight (48) hours from receipt of this notice. Unless you file a written appeal, at the conclusion of the ten (10) day period, without further notice and at your expense, the City may proceed with the abatement of the graffiti inscribed on your property. The decision of the City Manager may be appealed to the City Council under section 1.12.020.

(b) Notice to private property owners by the City shall be addressed to the name and address as it appears on the last tax assessment role by depositing a copy of the certified notice in the United States mail, with postage fully affixed, or by personally delivering a copy of the notice to the owner of the property or by personal service on the owner, occupant or person in charge or control of the property, by posting at a conspicuous place on the property or abutting public right-of-way or if no known address, the notice shall be sent in care of the property address. The service 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.

(c) The City shall keep an account of the cost of abatement and an itemized report shall be submitted to the City Council for confirmation within thirty (30) days after the completion of the removal of the graffiti.

(Ord. 1111 § 4 Exh. A (part), 2007: § 1, Ord. 953 C.S., eff. May 1, 1997)

(a) Whenever the City Manager or his/her designee finds that graffiti is located on any public or private property within the City so as to be visible from any public property or private property open to the public, the City Manager is authorized to provide for the removal of the graffiti solely at the City's expense, without reimbursement from the property owner upon whose property the graffiti has been applied, upon the following circumstances:

(1) Removal by the property owner is not possible due to indigence, disability, or it would create an unreasonable burden;

(2) Volunteer labor can be used and paint expense is minimal or the responsibility of the property owner;

(3) Paint or repair shall only cover that area necessary to remove the graffiti;

The consent of the property owner, or his/her designees shall include a release and right of entry form permitting such removal. The form shall also establish the responsible party for the costs of labor and/or materials.

(b) Removal shall be in accordance with the provisions of section 3.48.070 of this chapter. (§ 1, Ord. 953 C.S., eff. May 1, 1997)

If the property owner fails to remove the graffiti within said ten (10) days after notice, the City Manager or his/her designee, is authorized and directed to cause the graffiti to be abated by the City or private contractor and the City or its private contractor is expressly authorized to enter upon the property for such purposes.

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

(a) In the event abatement and related administrative costs have not been paid within thirty (30) days from the date of the issuing of 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 section 38773.6 and become an assessment lien against a parcel. Notice of the special assessment against the parcel to which it relates shall be recorded in the San Joaquin County Recorder's Office. The notice of special assessment shall specify: the amount of the special assessment, the City as the agency on whose behalf the assessment is imposed, the date of the City Council resolution, the street address and assessor's parcel number or legal description, and the name and address of the record owner. A copy of the notice shall be provided to the Tax Collector.

(b) Pursuant to Government Code section 38773.5, the total cost of abatement including all administrative costs, shall constitute a special assessment against the property. After the assessment is made and confirmed, it shall constitute a lien on the parcel. Upon recordation and notice to the Tax Collector, the 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 delinquency procedures. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment.

(c) In accordance with Government Code section 39773.6, 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 roll for collection.

(d) 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 (a) of this section.

(e) Any act of willful misconduct by a minor in applying graffiti in violation of Section 3.48.030(b) or California Penal Code Sections 594 and 640.5, and which misconduct caused damage to property, not in excess of Ten Thousand and no/100ths ($10,000.00) Dollars, shall cause the parent or guardian having custody and control of the minor to be jointly and severally liable with the minor for any damages resulting from such misconduct, including but not limited to, the costs expended to remove or otherwise abate such graffiti damage. The City Manager, or his/her designee, shall have the authority to seek reimbursement for the City's cost of removal and abatement pursuant to California Civil Code Section 1714.1(b).

(§ 1, Ord. 953 C.S., eff. May 1, 1997)

(a) Within forty-eight (48) hours of receipt of a Notice of Intent to Remove Graffiti as proscribed in section 3.48.090, the owner or person occupying or controlling such property affected may appeal the order of abatement to the City Manager under section 1.12.010. Other than the forty-eight-hour time limit, the appeal is governed by section 1.12.010. The decision of the City Manager may be appealed to the City Council under section 1.12.020.

(b) After conclusion of the ten-day period if not appealed, or if appealed, not less than forty-eight (48) hours after a final decision, the City Manager is authorized and directed to cause the graffiti to be abated by the City or private contractor and the City or its private contractor is expressly authorized to enter upon the property for such purposes.

(Ord. 1111 § 4 Exh. A (part), 2007: § 1, Ord. 953 C.S., eff. May 1, 1997)