Turlock Municipal Code Art. 4 Graffiti Control And Eradication

It is the purpose and intent of the City Council of the City of Turlock, through the adoption of this chapter, to provide enforcement mechanisms to protect public and private property from acts of vandalism and defacement including, but not limited to, graffiti on privately and publicly owned property because same is inimical and destructive of the rights and values of property owners as well as the entire community. Graffiti creates fear within the community and blight upon the City landscape, as well as devaluing property and detracting from the sense of community enjoyed by the residents of the City of Turlock, which extends beyond the cost of cleanup or removal. Graffiti represents not only a property crime, but a social crime on the quality of life and freedom from intimidation which Turlock residents desire within their neighborhoods.

(827-CS, Enacted, 09/23/1993)

The following words and phrases, whenever used in this chapter, unless the content indicates otherwise, shall be construed as defined in this section.

(a)

"Graffiti"

means any form of unauthorized painting, writing, or inscription regardless of the content or nature of the material used in the commission of the act. [California Penal Code Sections 640.5(d) and 640.6(b)(4)].

(b)

"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.

(c)

"Felt tip marker"

means any marker or similar device with a tip which, at its broadest width, is greater than one-sixteenth (1/16") of an inch, containing an ink or other pigmented liquid.

(d)

"Paint stick or graffiti stick"

means a 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 an inch in width.

(e)

"Gum label"

means any sheet of paper, fabric, plastic or other substance with an adhesive backing.

(f)

"Graffiti implement"

means any aerosol paint container, felt tip marker, or paint stick containing a substance that cannot be removed with water after it dries; gum label; or etching tool capable of scarring glass, metal, concrete or wood.

(g)

"Graffiti attracting surface"

means any surface of a structure, wall, sidewalk, building or other improvement, or the immediate area surrounding such surface, viewable to the public and deemed likely to attract graffiti by the nature of its design, and/or location.

(h)

"Posted"

means a sign placed in a reasonable location or locations stating it is a misdemeanor to possess a spray can of paint in such public facility, park, playground, swimming pool, beach or recreational area without valid authorization.

(827-CS, Enacted, 09/23/1993)

It shall be unlawful for any person to apply graffiti on any public or private structure located on publicly or privately owned real property within the City of Turlock.

(827-CS, Enacted, 09/23/1993)

(a) Implement display restrictions. Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol containers, or marker pens with tips exceeding at least one-sixteenth (1/16") of an inch in width, containing anything other than a solution which can be removed with water after it dries, shall store or cause such aerosol containers or marker pens 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 marker pens or paint containers.

(b) Implement sale restrictions.

(1) Furnishing to minors prohibited.

(i) It shall be unlawful for any person, firm, or corporation, except a parent or legal guardian, to sell or give or in any way furnish to another person, who is in fact under the age of eighteen (18) years, any aerosol container of paint that is capable of defacing property without first obtaining bona fide evidence of majority and identity.

(ii) For purposes of this subdivision, "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 governmental entity, and includes, but is not limited to, a motor vehicle operator's license, a registration certificate issued under the federal Selective Service Act, or an identification card issued to a member of the armed forces.

(iii) This subdivision shall not apply to the furnishing of six (6) ounces or less of an aerosol container of paint to a minor for the minor's use or possession under the supervision of the minor's parent, guardian, instructor, or employer.

(2) Purchase by minor prohibited. It shall be unlawful for any person under the age of eighteen (18) years to purchase an aerosol container of paint that is capable of defacing property.

(c) Restrictions on possession of certain graffiti implements.

(1) Possession with intent to deface is unlawful. It shall be unlawful for any person to have in his or her possession for the purpose of defacing any public or private property while on any highway, street, alley, or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance, any graffiti implement without the prior written consent of the owner of such property.

(2) Possession in designated public places. It is unlawful for any person to carry on his or her person and in plain view to the public an aerosol container of paint while in any posted public facility, park, playground, swimming pool, beach or recreational area, other than a highway, street, alley, or way, unless he or she has first received valid authorization from the governmental entity which has jurisdiction over the public area.

(3) Possession on posted private property. It is unlawful for any person to carry on his or her person and in plain view to the public an aerosol container of paint while in any posted private location.

(827-CS, Enacted, 09/23/1993)

(a) Nuisance declaration. The existence of graffiti within the city limits of the City of Turlock is a public and private nuisance, and may be abated according to the provisions and procedures contained herein.

(b) Owner responsibility. It is unlawful for any person who is the owner or who has primary responsibility for control of property or who has primary responsibility for the repair or maintenance of property (hereinafter referred to as "Responsible Party") to permit property which is defaced with graffiti to remain so defaced for a period of five (5) days after written notice from the City of same, unless:

(1) said Responsible Party shall demonstrate by a preponderance of evidence that he or she does not have the financial or physical ability to remove the defacing graffiti; or

(2) it can be demonstrated that the Responsible Party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program in which case it shall be unlawful to permit such property defaced with graffiti to remain defaced for a period of five (5) days after written notice from the City of same.

(827-CS, Enacted, 09/23/1993)

(a) Use of public funds. Whenever the City becomes aware or is notified and determines that graffiti is so located on publicly or privately owned property within the City, the City shall be authorized to use public funds for the removal of same, or for the painting or repairing of same, but shall not authorize or undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located, unless the City Manager, or his or her designee, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the responsible party agrees to pay for the costs of repainting or repairing the more extensive area.

(b) Subsequent graffiti requiring surface modification. The existence of any surface or a structure on an either public or private parcel of land which has been defaced with graffiti after forced removal by the City more than two (2) times in twelve (12) months is a public and private nuisance, and may be abated by minor modifications thereto, or to the immediate area surrounding same, according to the provisions and procedures contained herein and as follows:

Said surface or surfaces shall be required to be retrofitted, at the cost to the property owner of said lot, not to exceed a total of Five Hundred and no/100ths ($500.00) Dollars, or at the cost of the City at the City's option, with such features or qualities as may be established by the City as necessary to reduce the attractiveness or the surface for graffiti, or as necessary to permit more convenient or efficient removal thereof.

(c) Worker's compensation coverage. Persons removing graffiti pursuant to a City-sponsored graffiti removal program shall be deemed workers covered by the City's worker's compensation program and insurance coverage.

(d) Abatement and cost recovery proceedings.

(1) Notice and conduct of due process hearing.

(i) The City Manager or his or her designee (hereinafter referred to as "Hearing Officer") shall serve not less than forty-eight (48) hours written notice to the property owner or responsible party and if, after diligent search same cannot be found or located, then the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation published within Stanislaus County. Said notice shall inform the property owner or responsible party of the time and place for a hearing at which the property owner or responsible party shall be entitled to present evidence that his or her property does not contain graffiti.

(ii) The Hearing Officer shall determine whether or not the subject property contains graffiti. As to this finding, the determination of the Hearing Officer shall be final.

(iii) If the Hearing Officer determines that the subject property contains graffiti, the Hearing Officer shall give written notice that unless the graffiti is removed within five (5) days thereafter, the City shall enter upon the property, cause the removal or painting over or other such eradication effort deemed appropriate and shall provide an accounting to the property owner or responsible party of the costs associated with such eradication efforts.

(2) Cost of hearing. If the property owner or responsible party fails to request a hearing before the Hearing Officer regarding the eradication effort cost accounting, or after such a cost hearing, the Hearing Officer determines that all or a portion of the costs are appropriately chargeable to the eradication effort, the total amount set forth in the accounting or portion thereof shall be due and payable by the property owner or responsible party within thirty (30) days.

(3) Lien. If all or any portion of the assessed eradication charges remain unpaid after thirty (30) days, such amount shall constitute a lien on the subject property. The Hearing Officer shall present a resolution of lien to the City Council, and upon passage and adoption thereof, shall cause a certified copy to be recorded with the Stanislaus County Recorder's Office. The amount of such charges shall be collected at the same time and in the same manner as ordinary municipal taxes. If delinquent, the amount of such charges shall be subject to the same penalties and the same procedure for foreclosure and sale, as provided for ordinary municipal taxes.

(827-CS, Enacted, 09/23/1993; 1201-CS, Amended, 9/23/2014)

(a) Land use permits. In approving tentative or parcel maps, conditional use permits, variances, or other similar land use entitlement, the City may consider imposing any or all related conditions in furtherance of the purpose and intent of this chapter which may include, but is not limited to, the following:

(1) Use of anti-graffiti material: Developer shall apply an anti-graffiti material of a type and nature that is acceptable to the Community Development Director or his or her designee to each of the publicly-viewable surfaces on the improvements to be constructed on the site deemed likely to attract graffiti.

(2) Design of graffiti attracting surfaces: Developer shall design all graffiti attracting surfaces in a manner which limits or prevents the defacement of such surface with graffiti. Acceptable method of design includes, but is not limited to, the use of landscaping, anti-graffiti materials, and the physical orientation of such structures.

(3) Right of access to remove graffiti: Developer shall grant, prior to the resale of any of the parcels which are within the territory of said map, the right of entry over and access to such parcels upon forty-eight (48) hours of posting of notice by authorized city employees or agents to the City for the purpose of removing or painting over graffiti from the graffiti attracting surfaces previously designated by the Community Development Director or his or her designee.

(4) Supply City with graffiti removal material: Developer shall, for a period of three (3) years after the resale of his or her final lot, provide the City with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of designated graffiti attracting surfaces.

(5) Owner to immediately remove graffiti: Developer shall provide, either as part of the Conditions, Covenants and Restrictions, or as separate covenants recorded against individual lots, prior to resale of same property or land, which covenant shall run with the land and be for the benefit of the City, in a form satisfactory to the City, that the owner of the lots shall immediately remove any graffiti placed thereon.

(b) Common utility colors and paint type. Any gas, electric, telephone, water, sewer, cable, and other utility operation in the City of Turlock shall paint its above-ground metal fixtures with a uniform paint type and color which meets with the approval of the City Manager, or his or her designee.

(827-CS, Enacted, 09/23/1993)

(a) Parental civil liability. Any parent or legal guardian whose unemancipated child under the age of eighteen (18) years shall be personally liable for any and all costs to any person incurred in connection with the removal of graffiti caused by said child, or by said graffiti implement, and for all attorney's fees and court costs incurred in connection with the criminal and/or civil prosecution of any claim for damages.

(b) Penalties for defacing government property.

(1) Any person who writes, sprays, scratches, or otherwise affixes graffiti on or in the facilities or vehicles of a governmental entity, as defined by California Government Code Section 811.2, or on or in the facilities or vehicles of a public transportation system as defined by Section 99211 of the Public Utilities Code, or on or in the facilities of or vehicles operated by entities subsidized by, the Department of Transportation, or on or in any leased or rented facilities or vehicles for which any of the above entities incur costs of less than Two Hundred-Fifty and no/100ths ($250.00) Dollars for cleanup, repair, or replacement is guilty of an infraction punishable by a fine not to exceed Two Hundred-Fifty and no/100ths ($250.00) Dollars and by community service for a total time not to exceed forty-eight (48) hours over a period not to exceed thirty (30) days, during a time other than during his or her hours of school attendance or employment. This section does not preclude the application of any other State law or City ordinance.

(2) Upon conviction of any person under subdivision (a), the court may, in addition to any punishment imposed pursuant to subdivision (a), at the victim's option, order the defendant to perform the necessary labor to clean up, repair, or replace the property damaged by that person, but shall not order the person to pay for any related costs incurred by the cleanup, repair, or replacement of the property.

(3) If a minor is personally unable to pay any fine levied for violating subdivision (a), the parent or legal guardian of the minor shall be liable for payment of the fine. A court may waive payment of the fine by the parent or legal guardian upon acceptable to the Community Development Director and/or the Planning Commission finding of good cause.

(4) Any fine levied for a violation of subdivision (a) shall be credited by the county treasurer pursuant to Section 1463.29 to the governmental entity having jurisdiction over, or responsibility for, the facility or vehicle involved, to be used for removal of the graffiti. Before crediting these fines to the appropriate governmental entity, the county may determine the administrative costs it has incurred pursuant to this section, and retain an amount equal to those costs.

(5) Any community service which is required pursuant to subdivision (a) of a person under the age of eighteen (18) years may be performed in the presence, and under the direct supervision, of the person's parent or legal guardian. (California Penal Code Section 640.5)

(c) Graffiti: Fine: Community service.

(1) Except as otherwise provided by law, any person who writes, sprays, scratches, or otherwise affixes graffiti on any real or personal property not his or her own is guilty of an infraction punishable by a fine not to exceed Two Hundred-Fifty and no/100ths ($250.00) Dollars if the amount of the defacement, damage, or destruction is less than Two Hundred-Fifty and no/100ths ($250.00) Dollars. This section does not preclude the application of section any other State law or City ordinance.

(2) Upon conviction of any person under Section 4-14-408(1), the court may, in addition to any punishment imposed pursuant to said section, order the defendant to complete community service not to exceed forty-eight (48) hours for the first conviction. Upon the second and subsequent conviction, the court may order the defendant to complete community service not to exceed ninety-six (96) hours. A defendant shall be ordered to complete community service during a time other than during his or her hours of school attendance or employment.

(3) Upon conviction of any person under Section 4-14-408(1), the court may, in addition to any punishment imposed pursuant to said section, at the victim's option, order the defendant to perform the necessary labor to clean up, repair, or replace the property damaged by that person, but shall not order the person to pay for any related costs incurred by the cleanup, repair, or replacement of the property.

(4) If a minor is personally unable to pay any fine levied for violating Section 4-14-408(1), the parent or legal guardian of the minor shall be liable for payment of the fine. A court may waive payment of the fine by the parent or legal guardian upon a finding of good cause.

(5) Any community service which is required pursuant to Section 4-14-408(1) of a person under the age of eighteen (18) years may be performed in the presence, and under the direct supervision, of the person's parent or legal guardian. (California Penal Code Section 640.6)

(d) Vandalism: Penalty. Notwithstanding the provisions of any other State law or City ordinance the following penalties shall apply:

(1) Every person who maliciously (1) defaces with paint or any other liquid, (2) damages, or (3) destroys any real or personal property not his or her own, in cases otherwise than those specified by state law, is guilty of vandalism.

(2) If the amount of defacement, damage, or destruction is Fifty Thousand and no/100ths ($50,000.00) Dollars or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one (1) year, or by a fine of not more than Fifty Thousand and no/100ths ($50,000.00) Dollars, or by both that fine and imprisonment.

(3) If the amount of defacement, damage, or destruction is Five Thousand and no/100ths ($5,000.00) Dollars or more but less than Fifty Thousand and no/100ths ($50,000.00) Dollars, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one (1) year, or by a fine of not more than Ten Thousand and no/100ths ($10,000.00) Dollars, or by both that fine and imprisonment.

(4) If the amount of defacement, damage, or destruction is One Thousand and no/100ths ($1,000.00) Dollars or more but less than Five Thousand and no/100ths ($5,000.00) Dollars, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one (1) year, or by a fine of not more than Five Thousand and no/100ths ($5,000.00) Dollars, or by both that fine and imprisonment.

(5) If the amount of defacement, damage, or destruction is less than One Thousand and no/100ths ($1,000.00) Dollars, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding six (6) months, or by a fine of not more than One Thousand and no/100ths ($1,000.00) Dollars, or by both that fine and imprisonment.

(6) Upon conviction of any person of this section for acts of vandalism consisting of writing graffiti, the court may, in addition to any punishment imposed pursuant to subdivision (b), at the victim's option, order the defendant to either clean up and repair the damaged property himself or herself, or to pay for someone else to do so.

(California Penal Code Section 594)

(827-CS, Enacted, 09/23/1993)