HomeMy WebLinkAbout93-10 Amending Title 11; Unlawful GraffitiORDINANCE NO. 93-10
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF COSTA MESA, CALIFORNIA, AMENDING CHAPTER
VII -1/2 OF 'TITLE it OF THE COSTA MESA
MUNICIPAL CODE PERTAINING TO UNLAWFUL GRAFFITI
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN
AS FOLLOWS:
Section 1. Chapter VII -1/2 of Title 11 of the Costa Mesa
Municipal Code is hereby amended to read as follows:
"Sec. 11-140 Purpose.
The purpose of this Chapter is to provide a program
for abatement of graffiti from public and private
property to reduce blight and deterioration within the
City, protect public safety, and for expeditious removal
at public expense of graffiti from structures on both
public and private property. The City Council finds and
determines as follows:
(1) The increase of graffiti, on both public and
private property, is creating a condition within the City
which results in blight and deterioration of property
values and of the comfortable enjoyment of life and
property for adjacent and surrounding residents and
owners, and contributes to the overall detriment of the
City.
(2) Graffiti constitutes a public nuisance and a
threat to public safety which must be abated to alleviate
the detrimental impact of such graffiti on the City, and
to prevent the further spread of.graffiti.
(3) Certain categories of graffiti which incite
violence, are especially harmful and must be removed as
quickly as possible to avoid or minimize harm to persons
and the whole community.
(4) Government Code Section 53069.3 authorizes a
city to enact ordinances to provide for -the use of city
funds to remove graffiti on'structures located either on
public or private property, and in order to promote
expeditious removal of obnoxious graffiti, the use of
public funds is authorized as provided in the following
sections of the chapter.
(5) 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
with graffiti.
(6) City Council strongly recommends that when a
person is convicted of violating this ordinance that the
court impose a long community service sentence for the
local graffiti clean-up in addition to any other
penalties imposed by the court.
Sec. 11-141 Definitions.
(1) GRAFFITI means any unauthorized inscription, word,
figure, or design that is marked, etched, scratched,
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(2) Every person who owns, conducts, operates or manages a
retail commercial establishment selling aerosol paint containers,
paint sticks, felt tip markers or marking pens, shall store or
cause such containers, sticks, markers, or 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 containers or pens. It is the intent of
this section to permit, but not to require, viewability of aerosol
paint containers and felt tip marker or marking pens while they are
stored or displayed pending retail sale.
Sec. 11-146 Penalties for violations.
(1) Criminal Penalties. Minor determined to be a ward
of the court under Welfare and Institutions Code Section 602 as a
result of committing an offense in the City of Costa Mesa shall be
required, at the Cityls option, to perform community service,
including graffiti removal service of not less than six (6) hours.
Any violation of this chapter shall -be a misdemeanor offense
punishable by either six (6) months in jail, a $1,000 fine, or both
such fine and imprisonment.
(2) Additional penalties available. Penal Code Section 594
permits a court to impose a maximum penalty for graffiti of a
sentence of one (1) year in prison and a $50,000 fine, or both such
fine and imprisonment.
Vehicle Code Section 42001.7 permits a court to require a
littering,(Vehicle Code Sections 23111, 23112, 23113) offender to
pick up litter or clean up graffiti.
Vehicle Code Section 13202.6 permits suspension or delay in
issuance of a drivers license of one year for each conviction for
a graffiti offense.
Sec. 11-147 Detection provisions.
(1) Pursuant to Section 53069.5 of the Government Code, the
City does hereby offer a reward of $500.00 for information leading
to the arrest and conviction of any person for violation of Penal
Code'Section 594, the use of graffiti, not to exceed $1,500.00 per
violation. 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, shall constitute a
conviction.
(2) Claims for rewards under this section shall be filed with
the City. Each claim shall:
A. Specifically identify the date, location and kind of
property damaged or destroyed.
B. Identify by name the person who was convicted of or
who confessed to the damage or destruction of City
property.
C. Identify the court and the date upon which the
conviction occurred or the place and the date of the
confession.
C. No claim for a reward shall be allowed by the City
Council unless an authorized representative of the City
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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.
E. The person committing the graffiti shall be liable
for any rewards or car phone air time paid pursuant to
this section and, if that person is an unemancipated
minor then the custodial parent of said minor shall be
liable for any rewards or car phone air time paid
pursuant to this section.
(3) Reimbursement of car phone air time. The City may
reimburse to any person reporting by means of a mobile or cellular
phone an act of graffiti vandalism or existence.of graffiti within
the City limits in the amount of the direct phone charges exclusive
of taxes, etc., incurred by said person, where the City Council
determines that the claimant's information was relevant and
directly responsible for the arrest and conviction of the suspect.
Sec. 11-148 Removal provisions.
(1) 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
("Responsible Party"), to permit property which is defaced with
graffiti to remain so defaced for a period of seven (7) days after
notice of same, unless: (a) said person shall demonstrate by a
preponderance of evidence that he or she does not have the
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financial or physical ability to remove the defacing graffiti; or
(b) 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 fifteen (15) days after notice of same.
(2 ) The existence of graffiti within the. City limits of Costa
Mesa is a public,and private nuisance and may be abated according
to the provisions and procedures contained in this chapter.
(3) The existence of -any surface of a structure on a parcel
of land which has been defaced with graffiti after removal more
than five (5) times in twelve (12) months by the City at its
expense 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 herein contained
as follows: Said surface or surfaces may be required to be
retrofitted, at the cost of the property owner of said lot, 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 of the surface for graffiti, or as necessary to
permit more convenient or efficient removal thereof.
(4) 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.
(5) Whenever the City becomes aware or is notified and
determines that graffiti is so located on publicly or privately
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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
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.
Sec. 11-149.1 Abatement and cost recovery proceedings.
(1) Notice and conduct of due process hearing:
The Director of Community Services or his or her designee
("Hearing Officer") shall give not less than 48 hours, notice,
served in the same manner as summons in a civil action in
accordance with Article 3 (commencing with Section 415.10) of
Chapter 4 of Title 5 of -Part 2 of the Code of Civil Procedure (If
the owner of record, after diligent search cannot be found, the
notice may be served by, posting a copy thereof in a conspicuous
place upon the property for a period of 10 days and publication
thereof in a newspaper of general circulation published in the
county in which the property is located pursuant to Section 6062)
to the Party who is responsible for the maintenance of a parcel of
property containing graffiti ("Property") and, if a different
person is the owner of record on the parcel of land on which the
nuisance is maintained, based on the last equalized assessment roll
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or the supplemental roll, whichever is more current, then to said
owner also, of a "due process" hearing at which said Responsible
Party shall be entitled to present evidence and argue that his or
her Property does not contain graffiti. The determination of the
Hearing Officer after the "due process" hearing shall be final and
not appealable. If, after the due process hearing, regardless of
the attendance of the Responsible Party or his agent, the Hearing
Officer determines that the Property contains graffiti, the Hearing
Officer shall give written notice ("Eradication Order") that,
unless the graf f iti is removed within f ive ( 5 ) days thereafter, the
City shall enter upon the Property, cause the removal, painting
over (in such color as shall meet with the approval of the
Community Services Director) or such other eradication thereof
("Eradication Effort") as the Community Services Director
determines appropriate, and shall provide the Responsible Party
thereafter with an accounting of the costs of such Eradication
Effort -on a "full cost recovery basis."
(2) Eradication effort.
Not sooner than the time specified in the Order of the Hearing
Officer, the Community Services Director or his designee shall
implement the Eradication Order,.and shall provide an accounting to
the Responsible Party of the costs thereof ("Eradication
Accounting").
(3) Cost hearing.
If the Responsible Party fails to request a hearing before the
Hearing Officer on the Eradication Accounting ("Cost Hearing") or,
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if requested, a Cost Hearing is conducted after extending due
process to the Responsible Party, and 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 Eradication Accounting,. or such amount
thereof determined as appropriate by the Hearing Officer,
("Assessed Eradication Charges") shall be due and payable to the
City from the Responsible Party within 30 days.
(4) Lien.
If all or any portion of the Assessed Eradication Charges
remain unpaid after 30 days, pursuant to the authority created by
law, such.portion thereof as shall remain unpaid shall constitute
and is. hereby declared to constitute a lien on the Property which
was the subject matter of the Eradication Effort. The Community
Services Director shall present a Resolution of Lien to the City
Council, and upon passage and adoption thereof, shall cause a
certified copy thereof to be recorded with the Orange County
Recorder's office and with the Orange County Auditor/ Controller.
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.are provided for
ordinary municipal taxes.
Sec. 11-149.2 Common utility colors and paint -type.
Any gas, electric, telephone, water, sewer, cable, telephone
and other utility operation in the City of Costa Mesa shall paint
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is above -surface metal fixtures with a uniform paint type and color
which meets with the approval of the City Manager.
Sec. 11-149.3 Land use permits.
In approving tentative or parcel maps, conditional use
permits, variances, or other similar land use entitlements, the
City shall consider imposing any or all related conditions at the
public hearing required by law for approval of the tentative map,
conditional use permit, variance or other similar land use
entitlement. If approved:
(1) Use of Anti -Graffiti Material:
Developer shall apply an anti -graffiti material of a type an
nature that is acceptable to the Director of Community Services to
each of the publicly -viewable surfaces on the improvements to be.
constructed on the site deemed by the Director of Community
Services to.be likely to attract graffiti ("Graffiti Attracting
Surfaces").
(2) Right of access to remove graffiti:
Developer shall grant, prior to 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 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 Graffiti Attracting
Surfaces previously designated by the Director, and the right to
remove such graffiti; and
(3) Supply City with graffiti -removal material:
Developer shall, for a period of two (2) 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.
(4) 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 Attorney, that the
owner of the lots shall immediately remove and graffiti placed
thereon.
Sec. 11-149.4 Prevention provisions.
(1) Any surface of a structure on a parcel of land placed in
any land use other than residential which has been defaced with
graffiti after removal. more than five (5) times in twelve (12)
months, or the immediate area surrounding said surface, -may be
required to be retrofitted, at the cost of the property owner of
said lot, with such features or qualities as may be established by
the City as necessary to reduce the attractiveness of the surface
for graffiti, or as necessary to permit more convenient or
efficient removal thereof.
(2.) The owner of property on which is located a surface of a
structure other than residential which has been defaced with
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graffiti after removal more than five (5) times in twelve (.12)
months, or the immediate area surrounding said surface, shall
permit the City to enter upon and make such modifications thereto,
at City's cost, which modifications shall include such features or
qualities as may be established by the City as necessary to reduce
the attractiveness of the surface for graffiti, or as necessary to
permit more convenient or efficient removal thereof.
Sec 11-149.5 Parental civil liability.
Any parent or legal guardian, whose child under the age of 18
possesses a Graffiti Implement, 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 civil prosecution of any claim for damages.
Section 2. Severability.
It is declared to be the intention of the City Council that
the sections, paragraphs, sentences, clauses and phrases of. this
Chapter form an interrelated program for dealing with the problem
of graffiti and vandalism with the City, but that such sections,
paragraphs, sentences, clauses and phrases are distinct and
severable and, in the event that any sections, paragraphs, clauses
and phrases are declared unconstitutional, invalid or unenforceable
by any court of competent jurisdiction, such unconstitutionality,
invalidity or unenforceability shall not affect any of the
remaining sections, paragraphs, clauses or phrases of this Chapter.
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SECTION 3. This Ordinance shall take effect and be in full
force thirty (30) days from and after the passage thereof, and
prior to the expiration of fifteen (15) days from its passage shall
be published once in a newspaper of general circulation, printed
and published in the City of .Costa Mesa or, in the alternative, the
City Clerk may cause to be published a summary of this Ordinance
and a certified copy of the text of this Ordinance shall be posted
in the office of the City Clerk five (5) days prior to the date of
adoption of this. Ordinance, and within fifteen (15) days after
adoption, the City Clerk shall cause to be published the
aforementioned summary and shall post in the office of the City
Clerk a certified copy of this Ordinance together with the names of
the members of -the City Council voting for and against the same.
PASSED AND ADOPTED this 3rd day of May, 1993.
ATTEST:
r -
Deputy Ci Clerk of the City
of Costa sa
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Mayor of the City of Costa Mesa
/Al!"RROVED AS TO FORM
CITY ATTORNEY
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio Clerk of
the City Council of the City of Costa Mesa, hereby certify that the
above and foregoing Ordinance No. 93-10 was introduced and
considered section by section at a regular meeting of the City
Council held on the 19th day of April, 1993, and thereafter passed
and adopted as a whole at a regular meeting of the City Council
held on the 3rd day of May, 1993, by the following roll call vote:
AYES: �-GNi5) gQMPHPE,y� 4oPt,313ue.KL9 BuPF,4 Ek 0-k<5oAJ
NOES: �o
ABSENT: rVoNc
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the Seal of the City of Costa Mesa this 4th day of May, 1993.
Deputy C
the City
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Ic
!.
Clerk and ex -officio Clerk of
incil of the City of Costa Mesa