HomeMy WebLinkAboutOrdinance 2240 N.C.S. 05/01/20061
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
EFFECTIVE DATE
OF ORDINANCE
June 1, 2006
Introduced by
Pamela Torliatt
ORDINANCE NO. 2240 N.C.S.
Seconded by
Mike Healy
ADDING CHAPTER 10.29 TO THE PETALUMA MUNICIPAL CODE
RELATING TO GRAFFITI ABATEMENT
WHEREAS, the City currently has inadequate regulations governing graffiti removal; and,
WHEREAS, graffiti is inconsistent with the City's goals and standards for property maintenance
and appearance; and,
WHEREAS, graffiti is obnoxious and offensive and creates a condition of blight within the City that
results in the deterioration of property values, business opportunities and general enjoyment of life for
persons using adjacent and surrounding properties; and,
WHEREAS, graffiti tends to undermine the City's efforts to prevent and/or reduce instances of
criminal conduct; and,
WHEREAS, unless it is quickly removed, graffiti results in adjoining and nearby properties
becoming additional targets for graffiti, thereby causing additional property damage and
diminishing property values; and,
WHEREAS, graffiti impairs the ability of City officials to safeguard the safety and welfare of its
cifizens; and,
WHEREAS, the existence and proliferation of graffiti constitutes a public nuisance which must be
abated quickly so as to avoid the detrimental impact of such graffiti on the City and to prevent the
further spread of graffiti; and,
Ordinance No. 2240 N.C.S.
Page 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
WHEREAS, gang-related graffiti poses a particularly dangerous threat, as such graffiti often incites
violent confrontation which threatens the public health and safety. Therefore, the City Council finds that
gang-related graffiti must be removed immediately.
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
Section 1. Anew Chapter 10.29, entitled "Graffiti Abatement" is hereby added to the
Petaluma Municipal Code to read as follows:
CHAPTER 10.29
GRAFFITI ABATEMENT
10.29.010 Purpose
10.29.020 Definitions
10.29.030 Nuisance
10.29.040 Graffiti Prohibited
10.29.050 Graffiti Implements Restricted
10.29.060 Additional Penalties Available
10.29.070 Parental Responsibility
10.29.080 Removal of Graffiti; Standards for Removal
10.29.090 Notice
10.29.100 Service of Notice
10.29.110 Failure to Remove Graffiti
10.29.120 Removal by City
10.29.130 Summary Abatement by City
10.29.140 Liability for City's Cost of Abatement
10.29.150 Restitution
10.29.160 Reward for Information
10.29.170 Community Education
10.29.180 Trust Fund
10.29.190 Provisions Not Exclusive
10.29.010 Purpose.
The purpose of this chapter is to promote the public health, safety, and welfare of residents and
to protect property within the City of Petaluma ("City") by providing a program for removal of graffiti
Ordinance No. 2240 N.C.S.
Page 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
from walls and structures on both public and private property, and to provide regulations designed to
prevent and control the further spread of graffiti in the City. The increase of graffiti on both public and
private buildings, structures, and places. is creating a condition of blight within the City, which results in a
deterioration of property and business values for adjacent and surrounding properties, all to the
detriment of the City.
10.29.020 Definitions.
Whenever the following words and phrases are used in this Chapter 10.29, they shall have the
meanings ascribed to them as follows:
A. "Abate" or "Abatement" means the elimination, removal or termination of graffiti from
public or private property located within the City limits.
B. "City" means City of Petaluma and "City Council" means the City Council of Petaluma.
C. "Costs of Removal" means any cost incurred by the City for removal, elimination, or
termination of graffiti from either public or private property.
D. "Deface" means intentionally altering the physical shape or physical appearance of
property by inscription, words, figures, signs, or design without prior written permission of
the Property Owner.
E "Expenses of Abatement" means all costs incurred by the City related to abatement of
graffiti conditions, including without limitation, the costs of removal, court costs,
attorneys fees, administrative costs, and any law enforcement costs relating to the
identification and/or apprehension of a person who defaces property with graffiti or who
fails to remove graffiti from property affer being ordered to do so.
F. "Graffiti" shall mean any unauthorized inscription, word, figure, mark, sign, decal,
tag or design that is written, marked, etched, scratched, drawn, pasted, sprayed,
painted or otherwise affixed on any real or personal property.
G. "Graffiti Implement" means any felt tip marker capable of leaving a mark at least
3/8" of an inch wide, etching material that is capable of etching glass, aerosol
container which contains paint, ink, dye, or any similar substance and which is
capable of resulting in the placement of graffiti upon any surface or substance,
including but not limited to, glass, metal, concrete, wood and plastic.
H. "Person" means a natural persons).
I. "Property Owner" means any person who is the owner of real or personal property
that has been defaced, or who has primary responsibility for control over the
property, or who has primary responsibility for maintenance and repair of the
Ordinance No. 2240 N.C.S. Page 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
l8
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
property, and shall include any person owning, leasing, renting, occupying,
managing, or having charge of any property or structure.
J. "Public View" means any public or private area that is accessed from a public
roadway, sidewalk or common area and that is open to view by persons from said
public roadway, sidewalk or common area.
K. "Responsible Adult" means a parent, legal guardian, or other person over the age
of 21 years who is charged with legal responsibility and/or supervision of a minor.
L. "PEG" means Petalumans Eradicating Graffiti, a group of volunteers dedicated to
removing graffiti from all areas within the City of Petaluma.
10.29.030 Nuisance.
Graffiti on public or private property, either real or personal, constitutes a public nuisance.
10.29.040 Graffiti prohibited.
No person shall place graffiti upon any public or privately owned permanent structure or
personal property located on publicly or privately owned real property that is within public view in
the City. Any violation of this provision may be prosecuted as a misdemeanor in addition to any
other.: penalties provided for such violation, including without limitation, the penalties provided in
Penal Code Section 594.
10.29.050 Graffiti implements restricted.
A. No person under the age of eighteen (18) years and not in the presence of a parent
or legal guardian shall have in his or her possession a graffiti implement, as defined
by this chapter, while in any public park, playground, swimming pool; public
recreational facility or any public right of way, public building or structure owned or
operated by the City or while within fifty (50) feet of an underpass, bridge, abutment,
storm drain, or similar types of infrastructure in the City unless necessary to participate
in a function sponsored by the City. This section shall 'not apply to authorized
employees of the City nor shall it apply to the authorized agents or contractors
under contract with the City.
B. It shall be unlawful for any person under the age of eighteen (18) years and not in the
presence of a parent or legal guardian to possess any graffiti implement while on
Ordinance No. 2240 N.C.S. Page 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
school property, grounds, facilities, buildings, or structures, or in areas immediately
adjacent to those specific locations upon public property, or on private property
without the prior written consent of the owner or occupant of such private property.
The provisions of this Section shall not apply to the possession of broad-tipped
markers by a minor attending or traveling to or from a school at which the minor is
enrolled if the minor is participating in a class at the school that formally requires the
possession. of broad-tipped markers. The burden of proof in any prosecution for
violation of this Section shall be upon the minor student to establish the need to
possess abroad-tipped marker.
C. It shall be unlawful for any person, firm or corporation to sell or give any graffiti
implement, as defined by this chapter, to any individual under the age of eighteen
(18) years, who is not accompanied by a parent or legal guardian.
D. Any person, firm or corporation offering for sale to the public any graffiti implement, as
defined by this chapter, shall keep a log when aerosol containers of paint are
purchased. The business representative will log the name, address, driver's license
number and number of aerosol containers of paint purchased, by any individual
obtaining five (5) or more aerosol containers of paint.
E. Any person, firm or corporation engaged in the retail sale of any graffiti implement as
defined by this chapter, must display at a conspicuous location a legible sign
measuring not less than twelve (12) inches by twelve (12) inches with letters at least 1 /2
inch in height which states:
"It is unlawful for any person to sell or give to any individual under the age
of eighteen years any implement or other device capable of being used
to deface property. Any person who maliciously defaces real property is
guilty of vandalism which is punishable by a fine, imprisonment, or both."
(Ordinance Number specified)
F. Any person, firm or corporation that violates any provision of this section shall be
guilty of a misdemeanor.
10.29.060 Additional penalties available.
In addition to the penalties available for misdemeanors under California State Law and the
Petaluma Municipal Code, whenever deemed appropriate by the prosecuting attorney the City shall
petition a sentencing court to impose any or all of the following additional penalties upon conviction for
violation of section 10.29.040:
Ordinance No. 2240 N.C.S.
Page 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
A. Where permitted under state law, that any defendant under 18 years of age caught
applying graffiti shall pay a fine of $500 for a first offense, $1,000 for a second offense,
and $1,500 for a third offense, and any defendant 18 years of age or older caught
applying graffiti shall pay $1,000 for a first offense, $2,000 for a second offense, and $3,000
for a third offense.
B. That the defendant clean up, repair or replace the damaged property himself or
herself, or that the defendant, and his or her parents or legal guardians if the defendant
is a minor, keep the damaged property or other specified property in the City free of
graffiti for up to one year. This clean up, repair or replacement obligation shall be at the
defendant's expense, or at the expense of the defendant's parents or legdl guardians
if the defendant is a minor.
C. For each conviction of a person aged 13 or older the City may petition the court to
suspend existing driving privileges or delay the issuance of driving privileges in
accordance with California Vehicle Code Section 13202.6.
D. That any defendant caught applying graffiti shall be required to attend and
complete a Diversion Counseling Program through the Petaluma People's Services
Center.
10.29.070 Parental responsibility.
Pursuant to Civil Code Section 1714.1(6), where graffiti is applied by a minor, the parents or
legal guardian of the minor shall be jointly and severally liable for the payment of civil damages
resulting from the minor's misconduct in an amount not to exceed Twenty-five Thousand Dollars
($25,000).
10.29.080 Removal of graffiti; standards for removal.
A. No Property Owner shall permit his or her property that has been defaced with
graffiti to remain so defaced for more than seven (7) calendar days following
notification to the Property Owner or other responsible person(s) from a City official
to remove the graffiti.
B. 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 entire surface shall be repainted with a new
color that is aesthetically compatible with existing colors and architecture. The
Ordinance No. 2240 N.C.S. Page 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
removal shall not leave shadows and shall not follow the pattern of the graffiti such
that 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.
10.29.090 Notice.
A. Whenever the Police Chief or his/her designee determines that graffiti exists on any
permanent structure in the City and is within public view, he/she shall cause a notice
to be issued to the Property Owner and tenant to remove the graffiti. The notice
shall be in the form of a written letter which will include a copy of the Ordinance
regarding Graffiti Abatement, and either a phone call or visitation by City
representatives to secure immediate voluntary response on the part of the Property
Owner and or tenant. The Property Owner and or tenant will be encouraged to
remove the graffiti within seven days or contact representatives of "PEG" via the
Graffiti Hot Line for graffiti removal, or use some other source to remove the graffiti
within the specified time frame. Provided the Property Owner and or tenant has
made a good faith effort to remove the graffiti and or contact "PEG" in the
proscribed time of seven days, the Property Owner and or tenant shall not be
subject to the Abatement Penalties as specified in section 10.29.140 (C) below. The
Property Owner shall have seven (7) calendar days after the date of the notice to
remove the graffiti or the property will be subject to abatement by the City.
B. The Property Owner may appeal the determination of the Police Chief or his/her
designee regarding the existence of graffiti, whether the person upon whom the
notice was served is responsible for its removal, or whether circumstances exist that
would justify an extension of time for removal, by filing a written notice of the appeal
with the City Manager within three (3) days after receipt of the original notice by the
Property Owner. The City Manager is authorized to review and render a decision on
any appeal and shall serve such decision on the person(s) filing the appeal within
three (3) business days of the decision. The seven (7) day period for removal of
graffiti shall be tolled during pendency of an appeal. The decision of the' City
Manager may be appealed to the City Council within fifteen (15) days.
Ordinance No. 2240 N.C.S. Page 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
10.29.100 Service of written notice.
If required, a notice to remove graffiti required by section 10.29.090 shall be served upon the
Property Owners) as such owner's name and address appears on the last equalized property tax
assessment rolls of the County of Sonoma. In addition, if there is a tenant of the premises, the notice
shall also be served on said tenant. If there is no known address for the Property Owner, the notice
shall be sent in care of the property address. If there is no person occupying said property, the
notice shall be posted thereon. The notice required by this chapter may be served in any one of
the following manners, unless the notice is served by posting:
A. By personal service when serving the owner, occupant, or person in charge of the
property; or
B. By registered or certified mail addressed to the owner at the owner's address listed on
the last equalized property tax assessment rolls or at the property address, if applicable.
10.29.110 (Failure to remove graffiti.) <Reserved>
10.29.120 Removal by City.
A. Upon failure of any person to comply with the notice to remove graffiti by the
designated date, or such continued date thereafter as the City Manager or his/her
designated representative approves, the City Manager is authorized to cause the
graffiti to be removed by City forces or private contract.
B. Neither the City, nor any of its officials, officers, employees, consultants, or
representatives, including a private contractor hired by the City to remove graffiti,
shall be liable for alleged. losses or damages pertaining to the removal of graffiti in
the manner described and authorized in this chapter, save and except for any losses
or damages resulting from gross negligence or willful misconduct.
C. The removal of graffiti authorized by this section is subject to the following:
1. Where the graffiti is on a structure owned by a public entity other than the
City, entry onto the property for removal of the graffiti shall be authorized
only after securing the consent of the public entity having jurisdiction over
the structure and such entity executes a waiver and release, and agrees to
an assumption of direct costs incurred by the City for the removal.
Ordinance No. 2240 N.C.S.
Page 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
2. Where the graffiti is on a privately-owned structure, unless summary
abatement is authorized under section 10.29.130 or is necessary as an
emergency measure, entry onto the private property for removal of the
graffiti shall be authorized only after securing the consent of the Property
Owner and the owner executes a waiver and release, or upon issuance of
an Abatement Warrant by a Court of competent jurisdiction under California
Code of Civil Procedure Section 1822.50 et seq. The costs of obtaining an
Abatement Warrant may be recovered as an Expense of Abatement under
section 10.29.140.
10.29.130 Summary abatement by City.
In emergency cases, the police chief or his or her designee is hereby authorized to summarily
abate gang-related graffiti. The abatement may be undertaken by City staffer representatives, or
by outside contractors. For purposes of this Section only, gang-related graffiti shall be defined as
graffiti that is placed on private or public property by some person or person reasonably believed
by the City's police department or other local law enforcement agency to be a member of, or
affiliated with a criminal street gang, as that term is defined in Penal Code Section 186.22. The costs
of summary abatement, including the Costs of Removal and other expenses of abatement, may be
assessed against the person causing or creating the graffiti, or a Responsible Adult, or an
emancipated minor who is responsible for creating the graffiti. Recovery of the Costs of Removal or
Expenses of Abatement may be enforced by the City in the manner and following the procedures
described in Government Code Section 38773.2.
10.29.140 Liability for City's cost of abatement.
Except as otherwise provided in this Chapter:
A. The Property Owner shall be responsible to the City for the Expenses of Abatement.
Notice of the Expenses of Abatement shall be given to the Property Owner by the
City Manager, in the same manner as provided for giving notice in Section 10.29.100
(Service of Notice) hereof.
B. The Property Owner may appeal said Expenses of Abatement to the City Manager
by filing a written appeal within fifteen (15) days of the service of said notice. He/she
may appeal the City Manager's determination by written appeal to the City
Ordinance No. 2240 N.C.S.
Page 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
Council within fifteen (15) days after receipt of the City Manager's decision. The
decision of the City Council shall be final, save and except forjudicial review.
C. Unless said Expenses of Abatement are paid within thirty (30) days of service of
notice of same, or in the case of an appeal, within thirty (30) days of service of
notice of the determination of the appeal, a notice of lien shall be recorded in the
office of the Sonoma County recorder and shall constitute a lien on the property
and may be assessed against the Property Owner in the manner and following the
procedures described in Government Code Section 38773.2.
10.29.150 Restitution.
The City or any Property Owner who suffers property damage and/or monetary loss as a
result of having to remove graffiti may seek restitution for all Expenses of Abatement, including all
Costs of Removal, for any damage caused by the graffiti or the removal of same. Restitution may
be pursued by the City and/or the Property Owner in a separate civil action or as part of a criminal
proceeding against the perpetrator. A Responsible Adult may be held liable for damage or costs
incurred as a result of graffiti by a minor who defaces or otherwise damages property pursuant to
this Chapter.
10.29:160 Reward for information.
The City Council may, by resolution, offer and pay a reward for information leading to the
apprehension and conviction of any person who places graffiti or other inscribed material as
defined in this chapter upon private. or public structures in the City. In addition to any fines levied by
the City for violation of this chapter, any person who has damaged property by inscribing graffiti
shall be liable for the amount of the reward paid pursuant to this chapter and California
Government Code Section 53069.5.
10.29.170 Community education.
The City Manager, or his or her designee, may conduct regular programs to provide
community education regarding the prevention of graffiti.
Ordinance No. 2240 N.C.S.
Page 10
1 10.29.180 Trust Fund
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
The City Council hereby creates the City of Petaluma's Anti-Graffiti Trust Fund. Penalties
assessed against violators of this Ordinance shall be placed in the fund, along with any monetary
donations received from persons wishing to contribute to the fund. The Council shall direct the
expenditures of monies in the fund. Such expenditures shall be limited to the payment of the cost of
graffiti removal, the payment, at the discretion of the City Manager, of rewards for information
leading to the conviction of violation of the Ordinance and the costs of administering the
Ordinance.
10.29.190 Provisions not exclusive.
This chapter is not the exclusive regulation of graffiti as a nuisance within the City. It
supplements and is in addition to any other applicable law.
Section 2. Section 10.28.010 of the Petaluma Municipal Code is hereby repealed in its
entirety.
Section 3. If any section, subsection, sentence, clause or phrase or word of this
ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court
of competent jurisdiction, such decision sha11 not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Petaluma hereby declares that it would have
passed and adopted this ordinance and each and all provisions thereof irrespective of the fact
that any one or more of said provisions be declared unconstitutional, unlawful or otherwise invalid.
Section 4. This ordinance shall become effective thirty (30) days after the date of its
adoption by the Petaluma City Council.
Section 5. The City Clerk is hereby directed to post this ordinance for the period and in the
manner required by the City Charter.
INTRODUCED and ordered posted/wed this 17th day of April, 2006.
ADOPTED this 1St day of May, 2006 by the following vote:
Ordinance No. 2240 N.C.S. Page 1 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
:19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
AYES:
NOES:
ABSENT
Vice Mayor Canevaro, Healy, Nau, Torliatt
None
Mayor Glass, Harris, O'Brien
r--~
Cane Mayor
ATTEST:
Claire Cooper, City Clerk
APPROVED AS TO FORM:
Eric W. Danly, Cif Attorney
Ordinance No. 2240 N.C.S.
Page 12