Tustin Municipal Code Ch. 7 Graffiti/Spray Paint Program

The purpose of this chapter is to provide a program for the elimination of graffiti from both public and private property, to reduce blight and deterioration within the City and to protect the public safety. The City finds and determines as follows:

(1) Graffiti on structures located upon public and private property is a blighting factor which not only depreciates the value of the property, but also devalues the adjacent and surrounding properties in the community; and

(2) It is the City Council's intent to provide for the prohibition of the placement of graffiti on structures located either on public or private property; and

(3) Government Code Section 53069.3 authorizes a city to enact ordinances to provide for the use of city funds to remove graffiti from public and privately owned structures located within the city; and

(4) The City Council finds that graffiti and related inscribed materials are obnoxious and that Government Code Section 53069.3 authorizes that a program be instituted allowing for the use of City funds to remove graffiti from structures on public and private property; and

(5) Government Code Section 38773.5 authorizes the City to establish a procedure for the abatement of public nuisances within the City; and

(6) Government Code Sections 38773.5 and 53069.3 each authorize the City to establish a procedure to recover the costs of graffiti abatement performed by the City; and

(7) Government Code Section 53069.5 authorizes a city to offer and pay a reward for information leading to the determination of the identity of, and the apprehension of any person who willfully damages property; and

(8) Certain graffiti, due to its location, message, or other features can constitute an immediate threat to the health and safety of the community in that it may lead to additional graffiti, criminal activity, and even violence, such that its immediate abatement is necessary to protect the public health and welfare.

(Ord. No. 1510, Sec. 1, 9-15-20)

[As used in this chapter the following words and terms shall have the meaning ascribed thereto:]

"Bona fide evidence of majority" means a document issued by a federal, state, county or municipal government or subdivision or agency thereof, including, but not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal Selective Service Act, a passport, or an identification card issued to a member of the armed forces which identifies an individual and provides proof of the age of such individual.

"Capable of defacing property" means any substance, spray paint, paint, or dye, or any other liquid which when applied to any surface leaves an opaque and insoluble residue which cannot be removed by ordinary application of soap and water.

"Graffiti" means the unauthorized inscribing, spraying of paint, or making symbols using paint, spray paint, ink, chalk, dye or similar materials on public or private structures, buildings or places.

"Possessor" means any property manager, tenant, sub-tenant, lessee, occupant, or other person in lawful possession or control of property.

(Ord. No. 1510, Sec. 2, 9-15-20)

a. Sale to Minors Prohibited. No person shall sell or cause to be sold to any person under the age of eighteen (18) years any aerosol container of spray paint capable of defacing property.

b. Evidence of Sale Subject to Prosecution. Evidence that a person, his or her employee, or agent, demanded and was shown bona fide evidence of majority and acted upon such evidence in a transaction of sale to a minor, shall be a defense to any criminal prosecution thereof.

c. Posting of Prohibition Required. Any person who owns, manages or operates a place of business wherein aerosol containers of spray paint capable of defacing property are sold shall conspicuously post a copy of subsection a of this section in such place of business in letters at least three-eighths of an inch high.

(Ord. No. 1510, Sec. 2, 9-15-20)

No person shall have in his or her possession any aerosol container of spray paint capable of defacing property while in any public park, playground, swimming pool, or recreation facility, public building or other public place, other than a highway, street or alley, except authorized employees or agents of the City or persons having the authorization of the City Manager or his designees. Nothing in this section shall be deemed to prohibit the possession of an aerosol container of spray paint capable of defacing property on the property of any school as defined by the Education Code, by a teacher or authorized agent of such a school or any other person under the direct supervision and control of a teacher of such a school.

(Ord. No. 1510, Sec. 2, 9-15-20)

No person under the age of eighteen (18) shall have in his or her possession any aerosol container of spray paint capable of defacing property while on any public highway, street, alley or way unless such person is accompanied by a parent or legal guardian.

(Ord. No. 1510, Sec. 2, 9-15-20)

No person shall willfully or maliciously apply graffiti to mar, or deface any public or privately owned structures located on public or privately owned real property within the City, whether such property is occupied, vacated or abandoned.

(Ord. No. 1510, Sec. 2, 9-15-20)

a. It shall be unlawful for the owner or possessor of any private property to permit graffiti or other inscribed materials to remain on structures so as to be capable of being viewed by a person utilizing any public right-of-way in the City, such as a highway, street, road, parkway or alley, or from any public or private parking lot or from any public common areas, providing the City has given written notice to the owner and/or possessor requiring removal of the graffiti within a period of not less than seventy-two (72) hours and such time period has elapsed without remedial action. The written notice provided pursuant to this section must, in addition to any other method of communication, be posted on the property, and include notification that future instances of graffiti on the property that remain unabated may result in enforcement action without further written notice.

b. In the event that an owner or possessor of property which has, within the preceding six (6) months, been the subject of a written notice issued pursuant to subsection (a) of this section, it shall be unlawful for the owner or possessor of said property to allow graffiti to remain on that property for a period of seventy-two (72) hours after the placement of the graffiti on the property. No further notice is required by the City before enforcement action may be taken.

(Ord. No. 1510, Sec. 2, 9-15-20)

a. Graffiti Removal. Where graffiti, by virtue of its location on public or private property, is in view of a person utilizing any public right-of-way, whether a highway, street, road, parkway, or alley, or from any public or private parking lot or from any public common areas, the City shall be authorized to undertake the removal of such graffiti. Except as set forth in subsection (d) of this Section, prior to the removal of such graffiti the City shall obtain the written consent from the owner or possessor for such action.

b. Graffiti Removal—Structures on Public Property. It shall be unlawful for the owner of any utility box, cable box, pole, structure, or other similar appurtenances or facilities ("structures") on any public property or public easements to permit graffiti to remain on such structures for a period of over forty-eight (48) hours when such graffiti is capable of being viewed by a person utilizing any public right-of-way, such as a highway, street, sidewalk, road, parkway, easement, or alley. The forty-eight-hour period shall commence from the time the City has given notice, written or telephonic, to the owner and/or responsible party of such structure. If notice is provided by City by close of business on a Friday, the removal shall occur no later than close of business on the immediately following business day. All owners and/or managers ("responsible parties") of such structures shall provide the City with an address and telephone number the City can use to provide such notification. If the graffiti is not removed within the applicable timeline, the City may summarily remove the graffiti.

c. Cost Recovery and Appeal. In addition to penalties provided under this Code, the owner or possessor of the structures from which graffiti has been removed shall reimburse the City for its cost of removal including any cost associated with notification. The City shall provide the owner or possessor of the structure with an invoice for the costs. If the owner or possessor of the structure desires to dispute either the imposition or the amount of the invoice, then such owner or possessor shall notify the Community Development Director in writing of a request for hearing within seven (7) calendar days of the mailing of the invoice in accordance with Section 5504. The invoice shall notify the owner or possessor of the address at which to request an appeal and the timeframe for making a request. Failure to request an appeal within the timeframe provided by this Section shall waive any right to contest the imposition or the amount of the invoice. If an appeal is requested, a hearing shall be held in the manner set forth in Section 5504. An appeal may be brought on the ground:

(1) That notice was not provided as required by this chapter; or

(2) That the costs invoiced exceeded the actual costs of abatement or were otherwise unreasonable; or

(3) That the City was informed, prior to the City's removal of graffiti, of extraordinary circumstances beyond the control of the owner or possessor such as an emergency or natural disaster that prevented timely removal of the graffiti by the owner or possessor; or

(4) That the abatement of the graffiti, or the requirement to reimburse costs for such removal is otherwise unlawful.

d. Summary Abatement. When in the opinion of the City Manager, Chief of Police, Director of Public Works, or the Director of Community Development, or any of their designees, graffiti or other inscribed materials on public or private property is of such a nature as to constitute an immediate threat to the health, safety, and/or welfare of the public such that immediate removal of said graffiti is necessary, the City may immediately cause said graffiti to be removed. In determining whether graffiti or other inscribed materials constitute an immediate threat to public health, safety, and welfare, the City Manager, Chief of Police, Director of Public Works, the Director of Community Development, or any of their designees, may consider, among other factors, whether the graffiti or inscribed material has any of the following characteristics:

(1) Contains insults towards, or incites hatred or contempt of, any person or group of persons based on race, religion, ethnicity, gender, or sexual orientation;

(2) Refers to the name of a gang or includes words or symbols associated with a gang or is placed in an area identified by law enforcement to be territory claimed by a gang;

(3) Insults or threatens any identifiable individual or group;

(4) Includes obscene or indecent language or depictions;

(5) Constitutes an aesthetic blight or eyesore to a neighborhood;

(6) Tends to attract more graffiti; or

(7) Promotes criminal activity or promotes, or is likely to promote, retaliatory action by an individual or group of individuals.

e. In the event that the City performs summary abatement of graffiti pursuant to this section, it shall provide the owner or possessor of the property with post-removal notice of the abatement and an opportunity to request a hearing regarding the summary abatement. This notice shall provide the date and nature of the graffiti removal and advise the owner or possessor of the right to request a hearing for the purpose of challenging whether the summary abatement of the graffiti was unlawful for any reason. Any request for an appeal must be made within seven (7) days of mailing of the notice. Appeals shall proceed in the same manner as set forth in subsection (c) of this section. Failure of any owner or possessor to file an appeal shall constitute waiver of the right to appeal any aspect of the summary abatement.

f. In the event that the City chooses to perform summary abatement of graffiti from public or private property as set forth in subsection (d) of this Section, such costs shall be borne by the City.

g. Nothing in this Chapter shall limit the right of the City to abate a graffiti nuisance by any other lawful means.

(Ord. No. 1510, Sec. 2, 9-15-20)

A reward in an amount established by resolution of the City Council may be authorized, offered and may be paid by the City to any person who provides information leading to the determination of the identity of, and the apprehension of, any person who willfully or maliciously paints, marks or defaces any public or private structure located on private or public property within the City.

The exact amount of any reward to be paid by the City shall be determined by the City Council after receipt of a report from the City Manager indicating that information was received leading to the determination of the identity of, and the apprehension of, a person who willfully or maliciously painted, marred or defaced a structure located on public or private property located within the City, and indicating the final disposition of such matter. No law enforcement officer, municipal officer, official or employee of the City shall be eligible for such reward.

Any person violating the provisions of Sections 5705 through 5707 of this chapter shall pay the City the amount of any reward paid pursuant to this Section, and if such person is an unemancipated minor, such minor's parents or guardian are so liable and shall pay the amount of any reward to the City. Failure to pay any amount demanded by the City pursuant to this section within thirty (30) days of written demand therefor shall itself be a violation of the provisions of this section.

(Ord. No. 1510, Sec. 2, 9-15-20)