O 616 ORDINANCE NO. 616
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE ADDING CHAPTER 9.28
ENTITLED "GRAFFITI ABATEMENT" TO THE ARROYO
GRANDE MUNICIPAL CODE
WHEREAS, the City Council of the City of Arroyo Grande recognizes that graffiti on
private and public property in the City threatens public health, safety and welfare as
graffiti negatively impacts property values and the quality of life in the community; and
WHEREAS, the City Council of the City of Arroyo Grande recognizes that graffiti is often
connected to gang activity and hence the possibility of an increase in criminal activity;
and
WHEREAS, the City Council of the City of Arroyo Grande recognizes that if graffiti is not
promptly removed, such graffiti can generate additional vandalism and property
damage; and
WHEREAS, the City Council of the City of Arroyo Grande desires that those individuals
who commit acts of vandalism through graffiti, and if a minor, their parents be held
accountable for the removal and prevention of graffiti; and
WHEREAS, the City Council of the City of Arroyo Grande seeks to implement a graffiti
abatement program through the adoption of the proposed ordinance to provide
additional enforcement tools, public education, an effective and fair cost recovery
mechanism if necessary, and a reward system to encourage the discovery of
information leading to the identification and conviction or adjudication of offenders
responsible for graffiti
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Arroyo
Grande as follows:
SECTION 1. Chapter 9.28, entitled "Graffiti Abatement," is hereby added to Title
9 of the Arroyo Grande Municipal as set forth in Exhibit "A," attached hereto and
incorporated herein by this reference.
SECTION 2. If any section, subsection, subdivision, paragraph, sentence, or
clause of this Ordinance or any part thereof is for any reason held to be unlawful, such
decision shall not affect the validity of the remaining portion of this Ordinance or any part
thereof. The City Council hereby declares that it would have passed each section,
subsection, subdivision, paragraph, sentence, or clause thereof, irrespective of the fact
that any one or more section, subsection, subdivision, paragraph, sentence, or clause be
declared unconstitutional.
ORDINANCE NO. 616
PAGE 2
SECTION 3. A summary of this Ordinance shall be published in a newspaper
published and circulated in the City of Arroyo Grande at least five (5) days prior to the
City Council meeting at which the proposed Ordinance is to be adopted. A certified
copy of the full text of the proposed Ordinance shall be posted in the office of the City
Clerk. Within fifteen (15) days after adoption of the Ordinance, the summary with the
names of those City Council Members voting for and against the Ordinance shall be
published again, and the City Clerk shall post a certified copy of the full text of such
adopted Ordinance.
SECTION 4. This Ordinance shall take effect thirty (30) days after its adoption.
On motion by Council Member Arnold, seconded by Council Member Fellows, and by the
following roll call vote to wit:
AYES: Council Members Arnold, Fellows, Guthrie, and Mayor Ferrara
NOES: None
ABSENT: Council Member Costello
the foregoing Ordinance was adopted this 8 day of December 2009.
ORDINANCE NO. to I (o
PAGE 3
TONY FERRAR YOR
ATTEST: r 2a,,
KELLY WETMO E, CITY CLERK
APPROVED AS TO CONTENT:
STEVEN A dMS, MANAGER
APPROVED AS TO FORM:
7/L
^
TI J. CA L, CITY ATTORNEY
ORDINANCE NO. 616
PAGE 4
EXHIBIT "A"
CHAPTER 9.28
GRAFFITI ABATEMENT
Sections:
9.28.010 Purpose and Intent
9.28.020 Definitions
9.28.030 Nuisance Declared
9.28.040 Graffiti Prohibited
9.28.050 Graffiti Eradication Program
9.28.060 Identification of Party Responsible for Graffiti
9.28.070 Recovery of Graffiti Eradication Costs and Expenses
9.28.080 Invoice for Graffiti Eradication Costs and Expenses
9.28.090 Graffiti Removal
9.28.100 Property Owner's Obligation to Remove
9.28.110 Standards for Graffiti Removal
9.28.120 Graffiti Abatement and Cost Recovery Proceedings
9.28.130 Assessment and Payment of Costs
9.28.140 Cost of Abatement a Personal Obligation
9.28.150 Alternative Means of Enforcement
9.28.160 Possession of Graffiti Implements
9.28.170 Reward for Information
9.28.010 Purpose and Intent.
The purpose of this chapter is to provide a program to prevent and control the
further spread of graffiti within the City, to establish a process for the removal of graffiti
from real and personal property, and to assess and recover costs related to such
removal.
9.28.020 Definitions.
For the purposes of this chapter, unless the context clearly indicates otherwise,
the following words and phrases are defined as follows:
"Graffiti" includes any unauthorized inscription, writing, lettering, word, figure,
marking, drawing or design that is marked, written, etched, scratched, drawn, or painted
or otherwise placed on any part of a building, structure, facility or surface, regardless of
the nature of the material of that part.
ORDINANCE NO. 616
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"Unauthorized" means either without the prior consent of the property owner or
in violation of any law or regulation.
"Graffiti abatement costs and expenses" means and includes, but are not limited
to, the following costs and expenses incurred by the City:
1. The costs and expenses of having graffiti removed from defaced property;
2. The costs and expenses of having defaced property repaired or replaced
when the City determines that the removal of the graffiti would not be cost
effective;
3. The costs of administering and monitoring the participation of a defendant
and his/her parents or guardians in a Graffiti Abatement Program;
4. The related administrative, overhead, and incidental costs incurred in
performing or causing the performance of the enforcement, abatement or
collection procedures described in this chapter; and
5. Related court costs and attorneys' fees in accordance with Government
Code Section 38773.5.
"Graffiti eradication costs and expenses" include but are not limited to the
following costs and expenses incurred by the City:
1. All costs enumerated above in the definition of "graffiti abatement costs
and expenses "; and
2. The law enforcement costs and expenses incurred in identifying and
apprehending a responsible party.
"Graffiti implements" include, but are not limited to, the following items possessed
with the intent to deface any property:
1. "Aerosol paint container" means any aerosol container, regardless of the
materials from which it is made, which is adapted or made for the purpose
of spraying paint or other substance capable of defacing property.
"Aerosol paint container" does not include a container of less than six
ounces capacity provided to a minor for the minor's use or possession
under the supervision of the minor's parent, guardian, instructor or
employer.
2. "Felt tip marker" means any broad tip marker pen with a tip exceeding
three - eighths of one inch in width, or any similar implement containing an
ink that is not water soluble.
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3. "Paint stick or graffiti stick" means any 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 of one inch in width, which cannot be removed with
water after it dries.
"Graffiti implements" do not include the above items if they are furnished for use
in school - related activities that are part of an approved instructional program, when
such items are used under controlled and supervised situations within the classroom or
on the site of a supervised project.
"Police Chief" means the Chief of Police of the City of Arroyo Grande or his/ her
designee.
"Real or personal property" includes, but is not limited to: buildings or other
structures, such as walls; fences; signs; retaining walls; driveways; walkways;
sidewalks; curbs; street lampposts; hydrants; trees; electric, light, power, telephone or
telegraph poles; drinking fountains; display stands; utility boxes; and garbage
receptacles.
"A person in control of real property" means:
1. A renter or lessee of real property where a term of the rental agreement or
lease provides that the renter or lessee is responsible for the upkeep and
maintenance of the real property including painting of the property.
2. A manager who is designated by the person in control of the real property.
"Responsible party" means:
1. Any person, including a minor, who has been determined to have placed
graffiti on real or personal property of another person.
2. A minor who has: confessed to, admitted to, or pled guilty or no contest to,
a violation of Penal Code Section 594, 594.3, 640.5, 640.6, or 640.7; or
who has been convicted by final judgment of a violation of Penal Code
Section 594, 594.3, 640.5, 640.6, or 640.7; or who has been declared a
ward of the juvenile court pursuant to Welfare and Institutions Code
Section 602 by reason of the commission of an act prohibited by Penal
Code Section 594, 594.3, 640.5, 640.6, or 640.7.
3. The parents or guardians having custody and control of a minor who is a
responsible party also are responsible parties for the purpose of this
chapter.
ORDINANCE NO. 616
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9.28.030 Nuisance Declared.
The City Council declares that graffiti is a public and private nuisance, and may
be abated pursuant to this chapter, or as otherwise provided by law.
9.28.040 Graffiti Prohibited.
A. It is unlawful for any person regardless of age to place graffiti as defined in
Section 9.28.020 upon any real or personal property when the graffiti is visible
from any public right of way or from any other public or private property.
B. It is unlawful for any person who owns or is in control of any real or
personal property within the city to knowingly allow graffiti to remain upon, real or
personal property, for a period of time longer than seventy-two (72) hours after
having been given notice as provided for in Section 9.28.120, when the graffiti is
visible from any public right of way or from any other public or private property.
C. Aiding or abetting graffiti prohibited. It shall be unlawful for any person,
regardless of age, to aid, abet or encourage another to paint, etch or in any other
manner apply graffiti upon public or private, real or personal property of any kind
within the City of Arroyo Grande.
9.28.050 Graffiti Eradication Program.
The Police Chief is authorized to establish a comprehensive Graffiti Eradication
Program within the City that may, but is not required to, include the following: pro- active
enforcement to identify, apprehend and prosecute persons who have placed graffiti on
the real or personal property of another; establishment of procedures to pursue
restitution of graffiti eradication costs from responsible parties; establishment of a
preventive education program within local schools to prevent graffiti; establishment of
an offender education program with the intent of diverting those apprehended for graffiti
related offenses; establishment of a "graffiti hotline" to be used by the community to
report real or personal property which has been defaced with graffiti; coordination of an
"adopt an area or neighborhood" for reporting and clean up of graffiti; and the
coordination and maintenance of a graffiti wipe -out program that utilizes available
resources and enlists citizen volunteers and those who are responsible for community
service as an imposition of sentence or condition of probation with the goal of cleaning
graffiti from real or personal property within the City within seventy-two (72) hours of its
appearance.
9.28.060 Identification of Party Responsible for Graffiti.
To assist the Police Chief in identifying the responsible party in incidents of
graffiti, the Police Chief is authorized to request and receive any report or materials
ORDINANCE NO. 616
PAGE 8
containing the names and addresses of responsible parties to the fullest extent allowed
by law.
A. This authority includes, without limitation, the authority to receive a report
from the county probation officer containing the names and addresses of parent
or guardians having custody and control of minors who are responsible parties
pursuant to California Government Code Section 38772(c).
B. The Police Chief may apply to the juvenile court for the release of the
names and addresses of responsible parties who are minors.
9.28.070 Recovery of Graffiti Eradication Costs and Expenses.
A. Any responsible party as defined in this chapter shall be liable to the City
for all graffiti eradication costs and expenses.
B. All responsible parties for graffiti on a particular property shall be jointly
and severally liable for the graffiti eradication costs and expenses.
9.28.080 Invoice for Graffiti Eradication Costs and Expenses.
The Police Chief, or his /her designee, shall cause to be sent an invoice for graffiti
eradication costs and expenses to a responsible party. In addition to information on the
standard invoice for City service fees, the invoice for graffiti eradication costs and
expenses shall contain:
A. The address or location of the defaced real or personal property and the
location and a description of the defaced personal property, sufficient to identify
the defaced property;
B. A summary of the graffiti eradication actions performed;
C. A listing of the graffiti eradication costs and expenses incurred;
D. The identity of the responsible party and the basis of that determination;
E. A description of the payment process, including the time within which and
the place to which the graffiti eradication costs and expenses shall be paid;
F. A statement advising that the graffiti eradication costs and expenses shall
be a personal obligation of the party;
G. A statement advising that the City may pursue a special collection process
for the graffiti eradication costs and expenses against real property owned by the
responsible party; and
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H. A description of the process by which a responsible party may protest the
determination that he or she is a responsible party or the amount of the graffiti
eradication costs and expenses.
9.28.090 Graffiti Removal.
Graffiti that is visible from any public right -of -way or public or private property
shall be removed in accordance with the following provisions:
A. Removal by Property Owner. The property owner or other person in
control of such property shall be encouraged to perform the removal with his /her
own resources;
B. Removal by the City with Consent of Property Owner. The City or its
agents may remove graffiti upon satisfaction of the following conditions:
1. The consent of the owner of the property is obtained;
2. The property owner has requested the City to remove the graffiti
and has shown that they are unable to, due to financial or physical
reasons;
3. The property owner executes a release and right of entry form
permitting such graffiti removal;
4. The City shall not paint or repair a more extensive area than is
necessary to remove the graffiti, unless the Police Chief determines that a
more extensive area needs repainting or repairing in order to avoid an
aesthetic disfigurement to the neighborhood or community, or unless the
property owner agrees to pay for the cost of repainting or repairing the
more extensive areas; and
5. The owner provides paint of a specific color or match if they so
desire or are able to.
C. Removal by City without Consent of Property Owner. If the above solution
fails to result in the successful removal of graffiti, the Police Chief may order
abatement of graffiti from real or personal property when the owner does not
remove the graffiti with his or her own resources, or satisfy the conditions of
subsection B of this Section.
9.28.100 Property Owner's Obligation to Remove.
All persons who own real or personal property upon which graffiti has been
placed shall cause the removal of such graffiti, in the manner set forth in Section
ORDINANCE NO. 616
PAGE 10
9.28.110, within seventy two (72) hours after it is placed on the property. If the owner
fails to do so, the Police Chief may abate and remove graffiti on public or private
property in accordance with the procedure set forth in Section 9.28.090 and Section
9.28.110.
9.28.110 Standards for Graffiti Removal.
Graffiti shall be removed or completely covered in a manner that renders it
inconspicuous. When graffiti is painted out, the color used to paint it out shall match the
original color of the surface, or the surface shall be completely repainted with a new
color that is aesthetically compatible with existing colors and architecture. The removal
shall not leave shadows and shall not follow the pattern of the graffiti such that the
letters or similar shapes remain apparent on the surface after graffiti markings have
been removed. If the area is heavily covered with graffiti, the entire surface shall be
repainted.
9.28.120 Graffiti Abatement and Cost Recovery Proceedings.
Abatement of graffiti and assessment of graffiti abatement and /or eradication
costs shall be in accordance with the following procedure:
A. Following a report of graffiti from any source, the Police Chief shall issue a
notice of intent to abate the graffiti as a public nuisance, and shall serve such
notice by any of the following methods:
1. By personal service on the owner, occupant or person in charge or
control of the property;
2. By posting at a conspicuous place on the property or abutting
public right -of -way; or
3. By sending a copy of such notice by registered or certified mail
addressed to the owner at the address shown on the last available
assessment roll, or as otherwise known.
B. The notice of intent shall be in substantially in the following form:
NOTICE OF INTENT TO ABATE NUISANCE - GRAFFITI
(Name and address of person notified)
(Date)
ORDINANCE NO. 616
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NOTICE IS HEREBY GIVEN that you are required by Arroyo Grande Municipal Code
Chapter 9.28 to, at your sole expense, remove or paint over the graffiti in existence on
the property located at (address), which is visible to public view, by (date). If you fail to
do so, the City or its agents will enter your property and remove or paint over the graffiti.
The cost of such removal and /or painting will be assessed against you and your
property, and such costs will constitute a lien upon such property until paid.
You may request a hearing to contest this notice. To request a hearing, you must
submit a written request to the Police Chief by (date). If a request is not received by this
date by the Police Chief, the Police Chief shall have the authority to proceed with the
abatement of the graffiti inscribed on your property without further notice or hearing, and
at your expense.
Your presence is not required at the hearing. In lieu of attendance, you may submit a
sworn written statement executed under penalty of perjury, as to why you are not
responsible for the removal of the graffiti, and /or assessment of costs of removal and /or
painting. If you do not appear in person at the hearing, your sworn written statement as
described will be considered as your sole testimony.
C. Upon receipt of a request for hearing, the Police Chief shall set a date and
time for the hearing and notify the person requesting the hearing of the date,
time, and location of the hearing. All hearings under this chapter shall be held
before the Police Chief who shall hear all facts and testimony he /she deems
pertinent. Said facts and testimony may include testimony on the location of the
graffiti and the circumstances concerning its placement on the real or personal
property. The Police Chief shall not be limited by the technical rules of evidence.
After the hearing, the Police Chief shall serve notice of his/her written decision to
the person requesting the hearing, or other affected parties, within ten (10)
working days.
D. Any owner of the real or personal property on which graffiti is to be abated
who is not satisfied with the decision of the Police Chief to abate said graffiti may
appeal to the City Manager or his /her designee. The written appeal must be filed
with the City Manager within ten (10) working days of service of the Police
Chief's decision. The City Manager, or his /her designee, may uphold the order of
the Police Chief to abate the graffiti granted under this chapter if the City
Manager, or his /her designee, determines that the graffiti is detrimental to the
public safety or welfare.
9.28.130 Assessment and Payment of Costs.
A. Following abatement, the Police Chief shall send an invoice to the owner
of the real or personal property upon which graffiti has been abated. The notice
shall specify all graffiti abatement and eradication costs.
ORDINANCE NO. 616
PAGE 12
B. The total cost of graffiti abatement and eradication, including all
administrative costs, shall be paid by the owner or other person in control of the
real property or the owner of personal property upon which graffiti has been
abated, within thirty (30) calendar days after service of the invoice.
C. Pursuant to Government Code Section 38773.5, the total cost of
abatement and eradication, including all administrative costs, shall constitute a
special assessment against the property subject to the graffiti abatement, if not
paid in full within thirty (30) days after service of the invoice. After the
assessment is made, it shall constitute a lien on the property subject to the graffiti
abatement. Such special assessment shall 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 procedures and sale in case of delinquency
as provided for ordinary municipal taxes.
9.28.140 Cost of Abatement a Personal Obligation.
Instead of making the cost of abating a nuisance a special assessment against
the property subject to the graffiti abatement, the City may make the cost the personal
obligation of the property owner or other person creating, causing committing or
maintaining the nuisance. In such a case, all of the procedures of this chapter apply
except those specially related to assessment of the property. The property owner or
person in control will remain responsible for all abatement and eradication costs until
reimbursement is collected by the City from the person creating, causing, or committing
the nuisance.
9.28.150 Alternative Means of Enforcement.
Nothing in this chapter shall be deemed to prevent the City Council from
authorizing the City Attorney to commence any other available civil or criminal
proceedings to abate a public nuisance in addition to or alternative to proceedings set
forth in this chapter.
9.28.160 Possession of Graffiti Implements.
A. By Minors at or Near School Facilities. It shall be unlawful for any person
under the age of eighteen (18) years to possess any graffiti implement as defined
in Section 9.28.020 while on any school property, grounds, facilities, buildings,
structures, or in areas immediately adjacent to those specific locations, upon
public property, or upon private property without the prior written consent of the
owner or occupant of such private property.
B. In Designated Public Places. It shall be unlawful for any person to possess
any graffiti implement, as defined in Section 9.28.020 while in any public place.
ORDINANCE NO. 616
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9.28.170 Reward for Information.
A. Pursuant to Section 53069.5 of the Government Code, the City may offer
a reward of up to five hundred dollars ($500) for any person or persons who
furnish information, in whatever method that provides for adequate identification
of the violator(s) which may include photo or video evidence, to the City's Police
Department leading to the arrest and conviction, adjudication as a juvenile
offender, or confession of any person for violation of Section 9.28.040 of this
code or California Penal Code Section 594. 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, may constitute a conviction.
B. Moneys collected from penalties shall be deposited into the City's general
fund, and those moneys may be utilized to pay for the monetary reward and
graffiti control program.
C. Claims for rewards under this section shall be filed with the City Clerk as
are other claims against the City. Each claim shall:
1. Specifically identify the date, location and kind of property damaged
or destroyed;
2. Identify the person who was convicted of or who confessed to
violating Arroyo Grande Municipal Code Section 9.28.040 or California
Penal Code Section 594;
3. Identify the court and the date upon which the conviction occurred
or the place and the date of the confession;
4. No claim for a reward shall be allowed 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.
D. The person committing the graffiti violation, and, if that person is not an
emancipated minor, then the custodial parent or guardian of the minor shall be
liable for any rewards paid pursuant to this section.
OFFICIAL CERTIFICATION
I, KELLY WETMORE, City Clerk of the City of Arroyo Grande, County of San
Luis Obispo, State of California, do hereby certify under penalty of perjury, that
the attached is a true, full, and correct copy of Ordinance No. 616 which was
introduced at a regular meeting of the City Council /Redevelopment Agency on
November 24, 2009; was passed and adopted at a regular meeting of the City
Council of the City of Arroyo Grande on the 8 day of December 2009; and was
duly published in with State law (G.C. 40806).
WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 11
day of December 2009.
/4 ii M10460.0)1.4--
KELLY WE ORE, CITY CLERK