Tulare Municipal Code Ch. 6.52 Graffiti

(A) Graffiti abatement. The purpose of this chapter is to provide for the prompt abatement of graffiti from public and private properties in the city; to provide for methods of controlling the unauthorized use of aerosol paint containers, wide-tipped marker pens, and paint sticks by minors; and to encourage citizens to report occurrences of graffiti vandalism within the city.

(B) Nuisance declared. Due to the increase of graffiti vandalism on both public and private property, a condition has arisen within the city which has resulted in a deterioration of property values and concern for the quality of life of the city’s citizens. The City Council finds and determines that graffiti constitutes a public nuisance which, left unabated, adversely affects the city’s image, business development, retail sales, and residential housing costs. Allowing graffiti to remain on public or private property encourages additional unacceptable occurrences of graffiti, fuels fear among the community and is a factor which not only depreciates the value of the property which has been the target of such vandalism, but also depreciates the value of adjacent and surrounding properties.

(C) Minimize impact. The purpose of this chapter is, therefore, to minimize the impact which graffiti has on the city’s quality of life, economic stability, environmental image, aesthetic standard, and the overall sense of feeling of safety and security of its citizens. Because the existence of graffiti tends to breed community discontent and criminal and gang-related activities, the chapter will serve to mitigate these problems through quick removal and control of graffiti vandalism.

(1995 Code, § 6.52.010) (Ord. 05-1975, passed 8-16-2005)

For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section.

AEROSOL PAINT CONTAINER. Any aerosol container, regardless of the material from which it is made, used for the purpose of spraying paint or other substance capable of defacing property.

FELT TIP MARKER. Any indelible marker or similar implement with a tip which, at its broadest width, is greater than one-eighth inch containing an ink that is not water-soluble.

GRAFFITI. Defined as, but not limited to, any unauthorized inscription, work, figure or design that is marked, etched, scratched, drawn or painted on any surface.

GRAFFITI IMPLEMENT. Defined as, but not limited to, aerosol containers of paint, any felt-tip marker, any paint stick, or any other item used to mark, etch, scratch, draw, or paint any unauthorized inscription, work, figure or design.

MINOR. A person under 18 years of age.

PAINT STICK. 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-eighth of an inch in width, visible from a distance of 20 feet, and not water-soluble.

(1995 Code, § 6.52.020) (Ord. 05-1975, passed 8-16-2005)

It shall be unlawful for any person to sell, offer to sell or cause to be sold, any graffiti implements, including, but not limited to, aerosol containers of paint, any felt tip marker pen, or any paint stick, to any person under the age of 18 years who is not accompanied by a responsible adult.

(1995 Code, § 6.52.030) (Ord. 05-1975, passed 8-16-2005)

(A) (1) It is unlawful for any minor to possess any graffiti implement:

(a) While upon public property; or

(b) While upon private property, without the consent of the owner, or operator thereof. Such consent must be given in advance and must authorize the minor’s presence while in the possession of a graffiti implement.

(2) This division shall not apply while the minor is attending, or traveling to or from a school, who has a dated permission slip from a parent or a teacher.

(B) This section is not intended to conflict with Cal. Penal Code § 594.1.

(1995 Code, § 6.52.040) (Ord. 05-1975, passed 8-16-2005)

(A) Signs. Any person engaged in the retail sale of graffiti implements, including, but not limited to, any aerosol containers of paint, any felt tip marker pens, or paint sticks, shall display at the location of retail sales, a sign clearly visible and legible to employees and customers which states as follows:

It is unlawful for any person to sell, lend, or give to any individual under the age of 18 years, who is not accompanied by a responsible adult, any aerosol container of paint or any felt tip marker pen or paint stick with a tip greater than one-eighth inch.

(B) Display requirement.

(1) Every person or business engaged in a commercial enterprise shall display for sale, trade or exchange, any aerosol paint container or felt tip marker either:

(a) In an area continuously observable, through direct visual observation or surveillance equipment, by employees of the retail establishment during the regular course of business; or

(b) In an area not accessible to the public in the regular course of business without employee assistance.

(2) Nothing herein shall relieve such person or business entity from, at all times, complying with the requirements of Cal. Penal Code § 594.1(c) by posting signs as described therein.

(Ord. 05-1975, passed 8-16-2005)

(A) General. Any person applying graffiti within the city shall have the duty to remove same in a manner approved by the city and the property owner within 24 hours after notice by the city or public or private owner of the property involved. Failure of any person to so remove graffiti shall constitute an additional violation of this chapter. Consistent with Cal. Civil Code § 1714.1 where graffiti is applied by minors, the parent or guardian shall be responsible for such removal or payment of costs thereof.

(B) Public property. Whenever the City Manager, or his or her designated representative, determines that graffiti exists upon property owned by the city, it shall be removed as soon as possible. When the property is owned by a public entity other than the city, the removal of the graffiti may be authorized by the City Manager, or his or her designated representative, and removal undertaken by city only after securing written consent of the public entity having jurisdiction over the property. The public entity shall execute a release and waiver as approved by the city’s Risk Manager.

(C) Notice of affected area; requirement to remove graffiti.

(1) Where graffiti is located upon private property and the graffiti is capable of being viewed by persons utilizing any public right-of-way or sidewalk within the city, it is the property owner’s duty to remove the graffiti promptly from the property and to restore the property at least to the condition it was in prior to such act of vandalism. If the property owner fails to promptly remove the graffiti, the city shall cause a written notice to be served upon the owner of the affected property notifying the owner of the location and description of the graffiti and of the property owner’s obligation to remove the graffiti. It shall be the responsibility of the property owner to commence removal of the graffiti described in the notice within five days of service or personal delivery of the notice, and to diligently and promptly pursue total removal of the graffiti; provided that, an exception may exist in cases of undue hardship as established pursuant to division (C)(2) of this section. The service is complete at the time of deposit of the notice in the U.S. mail or by personal delivery of the notice to the owner of the property subject to removal of graffiti. The failure of any person to receive such notice shall not affect the validity of any proceeding.

(2) Undue hardship; optional procedure for removal.

(a) In the event the property owner cannot comply with the requirement of division (C)(1) above, due to hardship, the property owner shall file a written request for waiver of the removal requirement with the city. The property owner shall explain his or her reason(s) for making such request. The written request shall be filed within the five-day removal period stated in division (C)(1) above. In determining whether the request for waiver will be granted, and subsequent assistance provided to the property owner in removal of the graffiti, the city shall consider the following circumstances:

1. The cost of restoration of the property to its original state prior to the imposition of the graffiti in proportion to the relative value of the property;

2. The ability of the owner to pay for such removal;

3. Whether or not the property has been the target of previous incidents of graffiti or whether a pattern of vandalism to such property exists.

(b) The decision of the city in the form of a written decision by the City Manager, as to whether or not to grant the waiver shall be final.

(3) City’s release from liability. A written request to waive the requirements of division (C)(1) above shall be accompanied by a “release from liability” form signed by the property owner which shall release the city and its authorized agents from any and all liability that may be caused or attributed to removal of graffiti from the owner’s premises by persons acting under the authorization of the city.

(4) Approval for city to remove graffiti. A written request to waive the requirements of division (C)(1) above accompanied by a signed “release from liability” form shall constitute an express approval by the property owner that the city or its authorized representatives may provide for the removal of the graffiti on owner’s property by persons acting under the authorization of the city.

(5) Failure to remove graffiti or seek waiver of removal. In the event the owner fails to remove graffiti from his or her property and fails to request a waiver of such removal, the city may declare the property a public nuisance and the city may take any of the following courses of action.

(a) Administrative procedure to abate nuisance. The city may direct the removal of graffiti from the property with the cost of work performed billed to the property owner who may select the option of direct payment of such costs. Failure to make direct payment for the abatement of graffiti shall constitute a special assessment against the respective lot or parcel plat to which it relates. The assessment may 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. Upon completion of the graffiti abatement work, the City Manager shall cause to be recorded in the office of the Recorder of Tulare County, a “notice of completion of graffiti abatement proceedings” against a particular parcel involved. The notice of completion of graffiti abatement proceedings shall have the effect, when recorded, of conclusively establishing that graffiti abatement proceedings have been completed and that all proceedings have been completed and that all necessary charges incurred on account thereof by the city are due and owing and constitute a special assessment against the subject real property. This notice shall specify the name of the current owner of the parcel as shown on the last equalized assessment rolls of the County of Tulare, and the Tulare County Assessor’s parcel number for the parcel involved.

(b) The city may commence criminal proceedings to abate a public nuisance under applicable Penal Code provisions.

(1995 Code, § 6.52.060) (Ord. 05-1975, passed 8-16-2005)

A property owner shall have 15 days from the date of mailing by the city of the bill for the cost of removal of graffiti from the owner’s property to file a written appeal of the costs. The appeal must be submitted in writing to the City Clerk. Upon receipt of the written appeal, the City Clerk shall schedule a hearing before the City Council. The City Manager shall be so notified and shall submit a written report to the City Council, with a copy to the appealing party, setting forth justifications for the description of the work done and the cost thereof. The City Clerk shall notify the party appealing of the date and time of the hearing before the City Council, at least ten days in advance of such hearing. At the time and place of such hearing, the City Manager shall present his or her report and the appealing party shall present any and all information in opposition to the calculation of the cost of removal. At the conclusion of the hearing, the City Council shall determine what cost, if any, is to be imposed upon the appealing party.

(1995 Code, § 6.52.070) (Ord. 05-1975, passed 8-16-2005)

Any individual who is found guilty of violating § 6.52.060(A) of this chapter shall pay restitution to the property owner, in addition to authorized penalties. If the violator is a minor, the parent or guardian shall be responsible for payment of restitution. If unable to pay, the juvenile may be permitted to work off his or her payment under the direction of at least one parent by painting out graffiti.

(1995 Code, § 6.52.080) (Ord. 05-1975, passed 8-16-2005)

(A) It shall be unlawful and a misdemeanor to apply graffiti on any premises as described herein. Notwithstanding the classification of a violation of this chapter as a misdemeanor, at the time an action is commenced to enforce the provisions of this chapter, the trial court, upon recommendation of the prosecuting attorney, may reduce the charged offense from a misdemeanor to an infraction.

(B) It shall be unlawful and a misdemeanor for a minor to possess any “graffiti implement” as described herein in violation of § 6.52.040. Notwithstanding the classification of a violation of this chapter as a misdemeanor, at the time an action is commenced to enforce the provisions of this chapter, the trial court, upon recommendation of the prosecuting attorney, may reduce the charged offense from a misdemeanor to an infraction.

(C) Any person convicted of a misdemeanor under this chapter shall be punished by:

(1) A fine not to exceed $500 and/or 30 days in the county jail for a first violation;

(2) A fine not exceeding $1,000 and/or 90 days in the county jail for a second violation of this chapter within one year; and

(3) A fine not exceeding $2,500 and/or six months in the county jail for each additional violation of this chapter within one year.

(D) (1) Any person convicted of an infraction under this chapter shall be punished by:

(a) A fine not exceeding $50 for a first violation;

(b) A fine not exceeding $100 for the second violation of this chapter within one year; and

(c) A fine not exceeding $250 for each additional violation of this chapter within one year.

(2) Each day that a violation continues shall be regarded as a new and separate offense.

(E) Community based probation officer probation program, (Thunderbolt): community service with minimum hours and parental involvement. If the person violating this chapter is a minor, the matter may be referred to the community based probation officer. The community based probation officer may request that a petition be filed to declare the minor to be a ward of the court pursuant to Cal. Welfare and Institutions Code § 602, or elect to refer the matter to the traffic hearing officer. In lieu of filing a petition, the probation officer may impose a program of informal supervision, not to exceed six months, pursuant to Cal. Welfare and Institutions Code § 654. The probation officer shall be authorized to order the minor to perform such community service the probation officer deems appropriate. The community service shall contain the following minimum elements:

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

(2) The entire period of community service shall be performed under the supervision of a community service provider approved by the community based probation officer.

(3) The probation officer may require at least one of the custodial parents or guardians to be in attendance for up to 50% of the period of the assigned community service.

(1995 Code, § 6.52.090) (Ord. 05-1975, passed 8-16-2005)

Nothing in the foregoing sections shall be deemed to prevent the city from commencing a civil or criminal proceeding to abate a public nuisance under applicable Civil or Penal Code provisions as an alternative to the proceedings set forth herein.

(1995 Code, § 6.52.100) (Ord. 05-1975, passed 8-16-2005)

(A) Pursuant to Cal. Gov’t Code, § 53069.5, the city reserves the right to offer a reward in an amount and as to such locations as may be set by resolution of the City Council, for information leading to the arrest and conviction of any person for violation, within the city, of Cal. Penal Code §§ 594 or 594.3 by the use of graffiti, Cal. Penal Code §§ 640, 640.5, 640.6. In the event of multiple contributions 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 violator to a community service program, a plea bargain to a lesser offense, or the sustaining of any juvenile petition filed pursuant to Cal. Welfare and Institutions Code §§ 602 et seq., shall constitute a conviction.

(B) Claims for rewards under this section shall be filed with the city and shall:

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

(2) Identify by name the person who was convicted;

(3) Identify the court and the date upon which the conviction occurred; and

(4) Be in writing and filed within 180 days of such conviction.

(C) No claim for a reward shall be allowed by the City Council unless the city investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied. Once the claim is verified and the determination is made, the reward shall be paid within the city’s ordinary course of business.

(D) The person committing the graffiti vandalism, and if an un-emancipated minor, then the parent or lawful guardian of said minor shall be civilly liable for any reward paid pursuant to this section in accordance with the provisions of Cal. Gov’t Code § 53069.5.

(Ord. 05-1975, passed 8-16-2005)

If any section, division, 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. The City Council declares that it would have adopted each section, division, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, divisions, clauses, phrases or portions be declared invalid or unconstitutional.

(1995 Code, § 6.52.020) (Ord. 05-1975, passed 8-16-2005)