CC - Item 7B - Graffiti OrdinanceROSEMEAD CITY COUNCIL
STAFF REPORT
TO: MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGER
DATE: December 13, 2011
SUBJECT: GRAFFITI ORDINANCE
SUMMARY
The City Council will consider adoption'of a Graffiti Ordinance recommended by the
Rosemead Public Safety CONNECTIONS forum. Major features in the Ordinance are
provisions that would hold a minor as well as a minor's parents or legal guardians
financially liable for the costs for graffiti abatement and related costs incurred by the
City.
Staff Recommendation:
That the City Council introduce Ordinance No. 922 for adoption.
BACKGROUND /ANALYSIS
The Rosemead Public Safety CONNNECTIONS forum has been established by the City
Council with the ultimate objective of preventing crime in the community. Among the
most prevalent and visible crimes committed in Rosemead is graffiti. In an effort to curb
such criminal behaviors, the CONNECTIONS forum has recommended the adoption of
a Graffiti Ordinance. Major features of the Ordinance include provisions to hold an
offending minor as well as the parents or legal guardians of an offending minor
financially liable for the costs of graffiti abatement and related costs incurred by the City.
The proposed Ordinance was reviewed by the City Council in draft form at its November
8, 2011 meeting. At that time the Council authorized minor amendments suggested by
a citizen. The City Attorney has participated in drafting the Ordinance and also
recommends its adoption.
Attachment
APPROVED FOR CITY COUNCIL AGENDA: UEM N®. l�
ORDINANCE NO. 922
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD,
CALIFORNIA, AMENDING SECTION. 9.12.100 OF CHAPTER 9.12 OF THE
ROSEMEAD MUNICIPAL CODE PERTAINING TO GRAFFITI
THE CITY COUNCIL OF THE CITY OF ROSEMEAD ORDAINS AS FOLLOWS:
SECTION 1. Findings The City Council finds as follows:
A. Article XI, Section 7 of the California Constitution authorizes the City to enact and
enforce ordinances that regulate conditions which may be public nuisances or .
health hazards, or that promote social, economic or aesthetic considerations; and
B. California Government Code sections 38772, 38773, and 38773.5 specifically
authorize cities to abate graffiti as a public nuisance and collect the expenses of
abatement from the responsible person; and,
C. California Government Code section 53609.3 authorizes cities to use public funds
to remove graffiti from both public and private structures; and,
D. Municipal Code Chapter 9.12 currently prohibits graffiti but does not set forth
procedures for the collection of graffiti abatement expenses from responsible
parties, including parents or guardians, as permitted by state law; and
E. Graffiti presents an ongoing nuisance for City residents and law enforcement, a
blight on the community, and an unnecessary expense and the recovery of such
expenses is in the best interest of the City.
SECTION 2. Amendment to Section .9.12.100 of Chapter 9.12 of Title 9 of the
Municipal Code. Section 9.12.100 of Chapter 9.12 is hereby amended to read as
follows:
9.12.100 Graffiti.
A. Graffiti Defined. "Graffiti" means the unauthorized inscribing, printing, writing,
scrawling, chiseling, painting, spraying of-paint or marking of ink, chalk, dye or other
similar substances, or placing of any adhesive stickers, paper, fabric, plastic or other
material with an adhesive paste that are not Easily removable, on public or private
buildings, structures, places, walls, fences, trees, posts, or other real or personal
property.
B. Graffiti Prohibited. No person shall willfully inscribe, print, write, scrawl, chisel,
paint, mark, cut or otherwise place any graffiti or writings, drawings, figures, symbols or
other inscription on any wall, fence, tree, post, or other real or personal property not his
or her own and without the permission of the owner thereof, in such a position or
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location and of such a size as to be visible to members of the public in the normal use of
public streets, ways or other public places. The practice or act of placing any such
graffiti, writings, drawings, figures, symbols or other inscriptions on such real or
personal property is found and determined to.be a public nuisance.
C. Sale and Possession of Aerosol.Spray Paint Cans By Juveniles. It is
unlawful for any person to sell, exchanges give or loan, or cause or permit to be sold,
exchanged, given or loaned, any pressurized can or other container commonly known
as an aerosol spray paint can or container which contains paint or dye, and /or any
permanent writing instruments having a porous point, tip or nib in excess of one -
sixteenth of one inch in width at its widest point (hereinafter referred to as "writing
instrument') and or glass etching tools to anyone under the age of eighteen (18) years.
It is unlawful for anyone under the age of eighteen (18) years to purchase or otherwise
obtain any aerosol spray paint can, writing instrument or glass etching tools or for a
juvenile to possess an aerosol spray paint can, writing instrument or glass etching tools
in a public place unless such juvenile is in the presence of his or her parent or guardian.
D. Business Signage and Storage Requirements.
1. Any business or establishment offering sale to the public any paint or dye
which is packaged for sale in a pressurized container commonly known as an aerosol
spray paint can or container, writing instruments as described in subsection B of this
section and /or glass etching tools shall provide, post and maintain a sign which contains
"Any person who maliciously defaces real or personal property with paint is guilty of
vandalism which is punishable by a fine, imprisonment, or both." The letters will be at
least one -half inch in height. Such a sign shall be plainly visible to customers who may
seek to purchase aerosol spray paint cans, writing instruments or glass etching tools.
2. Any business or establishment offering for sale to the public any paint or dye
packaged in aerosol spray paint cans or containers, writing instruments as described in
subsection A of this section, or glass etching tools, shall keep, store and maintain such
aerosol spray paint cans or containers, writing instruments or glass etching tools in a
place that is locked and secured, or otherwise inaccessible to the public.
E. Property Owner Responsibilities.. ItJs unlawful for the owner of any private
property or vehicle to permit graffiti or other inscribed material to remain so as to be
capable of being viewed by a person utilizing any public right -of -way in the city, such as
a road, parkway or alley, providing the city has given the property owner written notice
to remove the graffiti within a period of ten (10) calendar days, and the ten -day period
has elapsed, unless the property owner agrees in writing to allow the city to remove the
graffiti.
F. Graffiti Removal.
1. Any person who applies graffiti within the city shall have the duty to remove the
same within twenty -four hours after notice by the city or the public or private owner of
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the property involved. The failure of any person to so remove the graffiti shall constitute
an additional violation of this chapter. Where graffiti is applied by juveniles, the parent
or parents shall be responsible for such removal or for the payment thereof.
2. The following procedure shall be followed for removal of graffiti by the city, with
the consent of the property owner. Whenever the city determines that graffiti or other
inscribed materials is so located on public or private property so as to be capable of
being viewed by a person utilizing any public right -of -way, and the owner of the property
consents to the removal by the city of the graffiti, the city shall be authorized to provide
for the removal of the graffiti, upon the following conditions:
a. If the city provides for the removal of graffiti, it shall not authorize nor
undertake to provide for the painting or repair of any more extensive area
than that where the graffiti is located.
b. Prior to the removal of graffiti, the city shall obtain written consent of the
owner and the owner shall execute an appropriate release prepared by
the city attorney.
C. The city reserves the right to recover city costs and expenses pursuant to
Section 9.12.100(G) of this Chapter, Penal Code Section 594, Civil Code
Sections 731 and 1714. 1, and Government Code Section 38771, et seq.
and Welfare and Institutions Code Section 742.10 et seq. from any
person, including any parent or legal guardian of a minor, who has willfully
damaged property in a manner described within Section 9.12.1 00(6) of
this code,.
G. Financial Liability for Cost of Graffiti Abatement.
1. When the disposition of a criminal case, or a proceeding pursuant to Welfare and
Institutions Code Section 602, determines that a minor or other person in such case is
responsible for creating, causing or committing the graffiti which was abated summarily
by the city, that same person, or in the case of a minor, the minor's parent or parents or
legal guardian, shall be liable for all abatement and related costs incurred by the city.
These costs shall include, but are not limited to, court costs, attorney's fees, costs of
removal of the graffiti or other inscribed material, costs of repair and replacement of
defaced property, and the law enforcement costs incurred by the city in the identification
and apprehension of the minor or other person responsible for the graffiti or other
inscribed material on publicly or privately owned permanent real or personal property
within the city, as prescribed within Government Code Sections 38772 - 38773.6 and
53069.3.
a. The determination of responsibility for creating, causing or committing the
graffiti shall be presumed by any confession, admission, guilty plea, or
plea of nolo contendere to any violation of Penal Code Sections 594,
594.3, 640.5, 640.6, or 640.7.
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b. In the case of a minor, responsibility for creating, causing or committing
the graffiti shall also be determined upon a conviction by final judgment or
by the minor being made a ward of the Juvenile Court pursuant to Welfare
and Institutions Code Section 602 by reason of the commission of any act
prohibited under Penal Code Sections 594, 594.3, 640.5, 640.6, or 640.7.
2. The city may recover all city funds used to remove graffiti, repair or replace
graffiti- damaged real or personal property within the city by making the expense of
abatement of the nuisance, as defined by Government Code Section 38772, a lien
against property of the minor or other person and a personal obligation against the
minor or other person pursuant to Government Code Section 38773.2 or 38773.6. The
parent(s) or guardian(s) having custody.and control of the minor shall be jointly and
severally liable with the minor pursuant to Government Code Sections 38772, 38773.2
and 38773.6. The graffiti nuisance abatement lien shall be created as follows:
a. The City shall give notice of intent to record a graffiti nuisance abatement
lien to the minor or other person prior to recordation of a lien on the parcel
of land owned by the minor or other person responsible for creating the
graffiti nuisance. If appropriate, the City shall also give notice of intent to
record a graffiti nuisance abatement lien to the parent or guardian having
custody of the minor responsible for creating the graffiti nuisance prior to
recordation of a lien on the parcel of land owned by the parent or
guardian. Any such notice of intent to record a graffiti nuisance abatement
lien shall be served by personal service in the same manner as a civil
action in accordance with the Code of Civil Procedure Section 415.10. If
the owner of record, after diligent search, cannot be found, the notice may
be served by posting a copy of the Notice in a conspicuous place upon the
property for a period of ten days and publication thereof in a newspaper of
general circulation published in the county in which the property is located
pursuant to Government Code Section 6062.
b. A graffiti nuisance abatement lien shall be recorded in the County
Recorder's Office in the county in which the parcel of land is located and
from the date of recording. shall have the force, effect, and priority of a
judgment lien.
C. A graffiti nuisance abatement lien authorized by this section shall specify
the amount of the lien; the name of the agency on whose behalf the lien is
imposed; the date of the abatement order; the street address, legal
description, and assessor's parcel number of the parcel on which the lien
is imposed; and the name and address of the recorded owner of the
parcel.
d. If the lien is discharged, released, or satisfied through payment or
foreclosure, notice of the discharge containing the information specified in
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Subsection (3) shall be recorded by the governmental agency. A graffiti
nuisance abatement lien and the release of the lien shall be indexed in the
grantor - grantee index.
e. A graffiti nuisance abatement lien may be satisfied through foreclosure in
an action brought by the city.
f. The city may recover from 'the property owner any costs incurred
regarding the processing aria recording of the lien and providing notice to
the property owner as part of its.foreclosure action to enforce the lien.
3. As an alternate to a graffiti nuisance abatement lien, the city may recover its
costs, as delineated above, as a special assessment against the parcel of land owned
by the minor or other person responsible for creating the graffiti or by the parent or
guardian having custody and control of the minor responsible for creating the graffiti.
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 pursuant to Government Code Section 38773.6.
4 Any parent or legal guardian of a minor is personally liable for any and all costs
to the City incurred in connection with the removal of graffiti caused by the conduct of
said minor, and for all attorney's fees, court costs, and civil penalties incurred in
connection with the civil prosecution of any claim for damages or reimbursement. The
City may pursue all available legal remedies against a parent or legal guardian to satisfy
any judgment or recover any owed amounts.
5. Second or subsequent criminal judgment. Upon the entry of a second or
subsequent civil or criminal judgment within a two -year period finding that a person
described in paragraph (3) of subdivision (d) of Section 38772 is responsible for the
defacement of property of another by graffiti or other inscribed material, the court may
order damages in an amount treble the costs of abatement pursuant to Government
Code Section 38773.7
H. Penalties.
1. Any person convicted of violating Section 9.12.100(E) of this chapter for the first
time shall be guilty of an infraction and shall be punished by a fine of five hundred
dollars ($500.00).
2. Any person convicted of violating Section 9.12.100(E) of this chapter for the
second time shall be guilty of an infraction. and shall be punished by a fine of one
thousand dollars ($1,000.00). '} :
3. Any person convicted of violating Section 9.12.100(E) of this chapter for a third or
any subsequent time shall be deemed guilty of a misdemeanor and shall be punished
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by a fine not exceeding one thousand dollars ($1,000.00), imprisonment not exceeding
six (6) months or by both such fine and imprisonment.
4. When found guilty of an infraction as noted in either subsection H(1) or H(2)
above, it shall be the court's option to require the monetary fine or to substitute
community service to be accountable at the minimum wage rate.
5. Any person convicted of violating any provision of this chapter except for Section
9.12.100(E) shall be guilty of a misdemeanor and shall be punished by a fine not
exceeding one thousand dollars ($1,000.00), imprisonment not exceeding six (6)
months or by both such fine and imprisonment.
I. Rewards.
The city council may, by resolution, establish a reward for information leading to the
identification, apprehension and conviction of any person who places graffiti upon any
public or private property in the city. The resolution may require that the convicted
offender reimburse the city for any reward paid and place responsibility for
reimbursement upon the parent(s) or legal guardian(s) of any minor so convicted.
Alternate Actions.
Nothing in this chapter shall be deemed to.prevent the city from commencing a civil or
criminal proceeding to abate a public nuisance, or from pursuing any other means
available to it under provisions of applicable ordinances or state law to correct hazards
or deficiencies in real property, in addition to or as alternatives to the proceedings set
forth in this chapter."
SECTION 3: This Ordinance shall take effect and be in full force and operation thirty
(30) days after adoption.
SECTION 4: If any section, subsection, subdivision, sentence, clause, or portion of this
ordinance, 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 the Ordinance. The City Council hereby, declares that it would
have adopted this Ordinance, and each section, subsection, subdivision, sentence,
clause, phrase, or portion thereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, or portions thereof be declared invalid or
unconstitutional.
SECTION 5: The city clerk shall certify, to'the adoption of this Ordinance and shall
cause the same to be published in accordance with law.
PASSED, APPROVED, AND ADOPTED this day of , 20011.
Steven Ly, Mayor
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ATTEST:
Gloria Molleda, City Clerk
APPROVED AS TO FORM:
Rachel Richman, City Attorney
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