HomeMy WebLinkAbout95-08 Amending Code Pertaining to Unlawful GraffitiORDINANCE NO. 95-8
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF COSTA MESA,. CALIFORNIA', AMENDING CHAPTER
VII -1/1.. OF TITLE 11 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 from public or private property,
and in order to promote expeditious removal of 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,
drawn, or painted on any real or personal property.`
(2) 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.
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(2) FELT TIP MARKER means any marker or similar"
implement with a tip which, at its broadest width, is
greater than one -sixteenth (1/16) inch, containing an ink
or other pigmented liquid.
(4) 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.
(5) GUM LABEL means any sheet of paper, fabric, plastic
or other substance with an adhesive backing which, when
placed on a surface, is not easily removable.
(6) GRAFFITI IMPLEMENT means an aerosol paint container,
a felt tip marker, gum label, a paint stick, etching
tool, or other similar devices capable of scarring glass,
metal, concrete or wood.
Sec. 11-142 Graffiti - Unlawful to apply.
It shall be unlawful for any person to apply graffiti on any
public or privately owned real or personal property within the
City.
Sec. 11-143 Implement possession by minors.
It shall be unlawful for any person under the age of 18 years
to have in his or her possession any graffiti implement while upon
public property, or upon private property, without the prior
written consent of the owner of such private property.
The foregoing provision shall not apply while the person
is attending or travelling to or from a school at which
the person is enrolled, if the person is participating in
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a''class -at said school which has, as a written
requirement.of said class, the need to use any graffiti
implement..
Sec,. 11-144 Implement possession in designated
public places.
No person shall have in his or her possession any graffiti
implement while doing any activity in any public park, playground,
swimming pool, recreational facility, or while loitering in or near
an underpass, bridge abutment, storm drain, and other similar types
of. infrastructure not normally used by the public, except as they
may be used in lawful activities.
Sec. 11-145 Furnishing to minors prohibited.
(1) It shall be unlawful for any person, other than a parent
or legal guardian, to sell, exchange, give, loan, or otherwise
furnish, or cause or permit to be exchanged, given, loaned, or
otherwise furnished, any felt tip marker or graffiti implement to
Any person under the age of 18 years without the consent of the
parent or other lawfully designated custodian of the person, which
custodial consent shall be given in advance in writing.
(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
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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 City's 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
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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
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
("Property Owner"), 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
financial or physical ability to remove the defacing graffiti; or
(b) it can be. demonstrated that the Property Owner 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
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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
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
Property owner or the person causing the graffiti, or if a minor,
his or her parent or guardian (hereinafter collectively referred to
as "Responsible Parties") agree to pay for the costs of repainting
or repairing the more extensive area.
Sec. 11-149.1 Abatement and cost recovery proceedings.
(1) Pursuant to Sections 38772, 38773, 38773.2, 28773.6 and
53069.3 of the Government Code, the City may summarily abate any
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nuisance resulting from the defacement of the property of another
by graffiti. The provisions of Government Code sections 38772,
38773, 38773.2 and 38773.6 are incorporated herein.
(2) 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
or the supplemental roll, whichever is more current, then to said
owner also,, -of a "due process" hearing at which said Property Owner
shall be entitled to present evidence and argue that his or her
Property does not contain graffiti. The City shall provide notice
of such hearing to the person causing the graffiti and if such
person be a minor, then also to his or her parent or guardian in
the manner provided in Government Code sections 38773.1, 38773.2
and 38773.5. 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 Parties or their agents, the Hearing Officer determines
that the .Property, contains graffiti, the Hearing Officer shall give
written notice ("Eradication.Order") that, unless the graffiti is
removed within five (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 Parties thereafter with an accounting of
the costs of such Eradication Effort on a "full cost recovery
basis."
(3) 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 Parties of the costs thereof ("Eradication
Accounting!').
(4) Cost hearing.
If the Responsible Parties fail to request a hearing before
the Hearing Officer on the Eradication Accounting ("Cost Hearing")
or, if requested, a Cost Hearing is conducted after extending due
process to the Responsible Parties; 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 Parties within 30 days.
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(5) Lien.
Jal 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.
(b) If all or any portion of the assessed eradication charges
remain unpaid after thirty (30) days, pursuant to the authority of
Government Code sections 38772, 38773, 38773.2 and 38773.6, such
portion thereof as shall remain unpaid may be made:
(i) a personal obligation of the person causing the
graffiti, and if such person be a minor, then also of his
or her parent or guardian;
(ii) a lien against the property of the person causing
the graffiti, and if such person be a minor, then also
against the property of his or.her parent or guardian;
(iii) a special assessment against a parcel of land
owned by the person causing the graffiti, and if such
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person be a minor, then also against his or her parent or
guardian.
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
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
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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.
Section 3. Publication.
This Ordinance shall take effect and be in full force and
effect thirty (3 0) days from and after its passage and, before the
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expiration of fifteen (15) days after its, passage, shall be
published once in the NEWPORT BEACH -COSTA MESA PILOT, 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 qday of , 1995.
ATTEST:
Deputy ity Clerk
of the City of Costa Mesa
15
May
APPROVED AS TO FORM:
.00
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.. 95- ? was introduced and
considered section by sect�on at a regular meeting of said City
Council held on the � 5 day of _- , 1995, and
thereafter passed.and adopted as a whole'at a regular meeting of
said City Council held. on the _� day of 1995, 1995, by
the following roll call vote: -�
AYES: COUNCIL MEMBERS: C5�) 0) 6oi-uFP�� tji5uCKt-c.) \
NE .0A -)A �
NOES: COUNCIL MEMBERS: NO -
ABSENT: COUNCIL MEMBERS: G t. o" -.)
IN WITNESS WHEREOF, I have hereunto set my han and affixed the
Seal of the City of Costa Mesa thisi`- day of �, , 1995.
ORDINANCES\A:\GRAFFM.REV (6-13-95)
Deputyity Clerk and ex -officio
o
Clerk the City Council of the
City of Costa Mesa
16-