HomeMy WebLinkAboutOrd 2005-2997
ORDINANCE NO. 2997
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING VARIOUS SECTIONS OF
CHULA VISTA MUNICIPAL CODE CHAPTER 9.20,
RELATING TO PROPERTY DEFACEMENT, INCLUDING
GRAFFITI REMOVAL REQUIREMENTS, PENAL TIES AND
RIGHTS OF THE CITY TO ENTER AND REMOVE GRAFFITI
WHEREAS, graffiti is inimical and destructive of the rights and values of private
property owners as well as the total community; and
WHEREAS, prolonged visibility due to the sheer volume, scale and complexity of the
graffiti, and placement of the graffiti in hard-to-reach places, enhances the graffiti creator's
satisfaction; and
WHEREAS, the swift removal or painting over of graffiti in combination with criminal
prosecution of the persons who cause it is the most effective way of combating this very serious
problem.
NOW, THEREFORE, the City Council ofthe City of Chula Vista does hereby ordain:
SECTION I: That Chapter 9.20 of the Chula Vista Municipal Code is amended to read as
follows:
Chapter 9.20
PROPERTY DEFACEMENT
9.20.010
9.20.020
9.20.030
9.20.035
9.20.037
9.20.040
9.20.045
9.20.050
9.20.055
9.20.060
9.20.065
9.20.070
9.20.010
Purpose and intent.
Definitions.
Anti-vandalism provisions.
Repealed.
Repealed.
Punishment provisions.
Detection provisions.
Accessibility to graffiti implements.
Removal provisions.
Prevention provisions.
Parental involvement provisions.
Severability.
Purpose and intent.
It is the purpose and intent of the City Council of the City, through the adoption of this
chapter, to provide additional abatement and enforcement tools to protect public and private
property from acts of vandalism and defacement; especially, but not limited to, graffiti on
privately and publicly owned property, which is inimical and destructive of the rights and values
of private property owners as well as the total community. The majority of those individuals
who paint graffiti seek notoriety and recognition as they attach status to having their work seen.
Prolonged visibility due to the sheer volume, scale and complexity of the graffiti, and placement
Ordinance 2997
Page 2
of the graffiti in hard-to-reach places, enhance the perpetrator's satisfaction. Therefore, the swift
removal or painting over of graffiti in combination with criminal prosecution of the persons who
create it is the most effective way of combating this very serious problem. It is further the intent
ofthe City Council, through the adoption of this notice to all of those who callously disregard the
property rights of others, that the law enforcement agencies of the City, both the police
department and the prosecutor's office, will strictly enforce the law and severely prosecute those
persons engaging in the defacement of public and private properties.
9.20.020
Definitions.
A. As used in this section, "graffiti" includes any inscription, word, tigure, or design
that is marked, etched, scratched, drawn, painted, pasted or otherwise affixed to or on any
surface, regardless ofthe nature of the material of that structural component, to the extent
that same was not authorized in advance by the owner thereof.
B. "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 substances capable of defacing property.
C. "Felt tip marker" means any indelible marker or similar implement with a tip
which, at its broadest width, is greater than one-eighth inch, containing an ink that is not
water-soluble.
D. "Glass etching products" means any product which can be used to permanently
alter a glass surface, including but not limited to such products that contain hydrofluoric
acid, ammonium bifluoride and sulfuric acid, or sodium bifluoride.
E. "Graffiti implement" means an aerosol paint container, a felt tip marker, a graffiti
stick or glass etching products.
F. "Graffiti stick" means a device contammg 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-eighth of an inch in width, visible from a
distance of 20 feet, and not water-soluble.
9.20.030
Anti-vandalism provisions.
A. Unlawful to Apply Graffiti. It shall be unlawful for any person to apply graffiti
on any public or privately owned structures located on public or privately owned real
property within the City.
B. 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 consent of the owner of such private property,
whose consent is given in advance and whose consent shall be given as to the person's
presence while in the possession of a graffiti implement.
1. School Exception for Felt Tip Markers. The foregoing provision shall not
apply while the person is attending, or traveling to or from, a school at which the
person is enrolled, if the person is participating in a class at said school which has,
as a written requirement of said class, the need to use felt tip markers.
Ordinance 2997
Page 3
C. Possession in Designated Public Places. No person shall have in his or her
possession any graffiti implement while doing any activity at or around a public building
or 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 may be authorized by the City.
9.20.035
Permitting graffiti to remain - Criminal liability.
Repealed by Ord. 2496 § I, 1992.
9.20.037
Right of City to remove - Civil remedy.
Repealed by Ord. 2496 § I, 1992.
9.20.040
Punishment provisions.
A. Police Diversion Program - Community Service with Minimum Hours and
Parental Involvement. In lieu of, or as part of, requesting prosecution of a petition to
declare a minor to be a ward of the court under Welfare and Institutions Code Section
602 (including, but not limited to, offenses which, in the opinion of the Police Chief,
constitute a violation of this chapter), or in lieu of prosecuting a violation of this chapter
as a crime against an adult, the Police Chief, with the approval of (or according to rules
and procedures approved by) the City Manager, shall be authorized to offer said minor or
adult an option to perform such community service as the Police Chief, deems
appropriate, but which community service shall, if offered at all, contain the following
minimum elements:
1. The minor shall perform at least 30 hours of community service.
2. At least one of the custodial parents or, if none, guardians shall be in
attendance at least 50 percent of the period of assigned community service.
3. The entire period of community service shall be performed under the
supervision of a community service provider approved by the Chief of Police.
4. Reasonable effort shall be made to assign the subject minor or adult to a
type of community service that is reasonably expected to have the most
rehabilitative effect on the minor or adult.
B. Mandatory Juvenile Delinquent Community Service. Any 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 shall be required, at the City's option, to perform
community service.
C. Penalties for Violation. Any and all violations of this chapter shall be punishable
either as an infraction or a misdemeanor, at the discretion of the City Attorney.
Violations ofCVMC § 9.20.055 (A)(2) ("Failure to Remove Graffiti Unlawful") are only
punishable by the imposition of an administrative fine, penalty, or abatement action,
pursuant to Chapters 1.30, 1.40 and 1.41 of the Municipal Code.
9.20.045
Detection provisions.
Ordinance 2997
Page 4
A. Reward Authority.
1. Pursuant to Section 53069.5 of the Govemment Code, the City does
hereby offer a reward of $150.00 for information leading to the arrest and
conviction of any person for violation of Penal Code Section 594 by the use of
graffiti, not to exceed $300 per incident of graffiti. In the event of multiple
contributors of information, the reward amount shall be divided by the City in the
manner it shall deem appropriate. For the purposes of this section, diversion of
the offending violator to a community service program, or a plea bargain to a
lesser offense, shall constitute a conviction.
2. Claims for rewards under this section shall be filed with the City. Each
claim shall:
a. Specifically identify the date, location and kind of property damaged or
destroyed.
b. Identify by name the person who was convicted, or confessed to the
damage or destruction of the City property.
c. Identify the court in and the date upon which the conviction occurred or
the place and the date of the confession.
3. 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.
4. The person committing the graffiti, and if an unemancipated minor then
the custodial parent of said minor, shall be liable for reward paid pursuant to this
section.
9.20.050
Accessibility to graffiti implements.
A. Furnishing to Minors Prohibited. It shall be unlawful for any person, other than a
parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause to permit to
be exchanged, given, loaned, or otherwise furnished, any felt tip marker, graffiti stick, 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.
B. Wrongful Display for Sale. No person, firm or entity engaged in a commercial
enterprise ("seller") shall display for sale, trade or exchange any graffiti implement except in an
area from which the public shall be securely precluded without employee assistance. Two such
acceptable methods for displaying a graffiti implement for sale shall be by containment in: (1) a
completely enclosed cabinet or other storage device which shall be permanently affixed to a
building or building structure, and which shall, at all times except during access by authorized
representatives, remain securely locked; or (2) in an enclosed area behind a sales or service
counter from which the public is precluded from entry.
C. Wrongful Storage. No person shall store any graffiti implement except in either:
(1) a completely enclosed room which shall, at all times except during access or substantial
occupancy by the owner or an authorized adult representative of the owner, remain securely
Ordinance 2997
Page 5
locked; or (2) in a completely enclosed cabinet or other storage device which shall be
permanently affixed to a building or building structure, and which shall, at all times except
during access by the owner or an authorized adult representative of the owner, remain securely
locked. For the purposes of this section, an owner or authorized representative of the owner shall
be deemed to have substantial occupancy of a room even during short periods of absence if the
room is part of a larger structure which is occupied by the owner.
I. Enforcement Policy on Wrongful Storage Offenses. It shall be the
intention of the City to enforce this provision against the wrongful storage of
graftiti implements only when its violation has caused or contributed to an act of
vandalism by a third party.
D. Civil Responsibility for Damages for Wrongful Display or Storage. Any person
who displays or stores a graffiti implement in violation of the provisions of this chapter shall be
personally liable for any and all costs incurred by any party in connection with the removal of
graffiti, or the repair of any property containing graffiti, caused by any person who shall use such
graffiti implement in violation ofthe provisions of California Penal Code Section 594, and for all
attorney's fees and court costs incurred in connection with the civil prosecution of any claim for
damages, not to exceed $1,500.
9.20.055
Removal provisions.
A.
Declaration of Nuisance.
1. Graffiti as a Nuisance. The existence of graffiti within the City limits of
the City is a public and private nuisance, and may be abated or enforced
according to the provisions and procedures contained in this chapter or the
administrative enforcement and abatement provisions found in Title I of the
Municipal Code.
2. Failure to Remove Graffiti Unlawful. It shall be unlawful for any person
who is the owner or who has primary responsibility for control of real or personal
property or who has primary responsibility for the repair or maintenance of the
property ("responsible party") to permit said property, even if located in the City
right-of-way, to remain defaced with graffiti, visible to the public, for more than
forty-eight (48) hours. Property shall be considered no longer defaced when the
graffiti is removed or the defaced area is covered by paint which is similar in
shade and color to the surface the graffiti resides on. If the graffiti is on glass or
some other material, which can be scraped without damaging the material, the
graffiti shall be removed and not painted over. Federal, state and local entities
(besides the City of Chula Vista) may be considered a responsible party for
purposes of this Chapter.
Utilities or responsible parties with an active program for the removal of
graffiti and who own or maintain more than fifty (50) unattended structures
throughout the City (hereinafter "multiple property owners") shall have an
additional forty-eight (48) hours to remove graffiti from those structures.
B. Right of City to Remove.
1. Use of Public Funds. Whenever the City becomes aware, or is notified
and determines, that graffiti is so located on public or privately owned property
viewable from a public or quasi-public place within the City, the City shall be
Ordinance 2997
Page 6
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/her 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.
2. Right of Entry. If a responsible party fails to remove graffiti within
forty-eight (48) hours of being notitied by the City, or ninety-six (96) hours for
multiple property owners, the City Manager or his/her designee (including an
independent contractor) shall have the right to enter onto the property, paint over
or remove said graffiti.
a. Notice - Method of Service. Before entering onto a person's property
to abate graffiti, the City shall notify the responsible party in writing of its
intent to do so. Said notice shall be served by any of the following
methods:
i. Delivering to and leaving personally with the responsible party
or a person of suitable age and discretion who resides or is
employed at the property ("personal service"); or
ii. Certified mail, postage prepaid, return receipt requested to the
last known address of the responsible party (simultaneously, a
duplicate notice may be sent by regular mail, postage prepaid); or
iii. If the graffiti is on attended/occupied property, by posting or
hanging a notice on the defaced property in a manner most likely
to give actual notice to the responsible party.
All multiple property owners shall establish an agent for service of
process with an address and facsimile number where the owner can be
notified during normal business hours (8:00 a.m. to 5:00 p.m.). Successful
delivery of a notice to the agent's address or successful transmission of a
facsimile to the number provided shall be an acceptable method of service
for multiple property owners.
b. Notice - When Served. The notice shall be deemed served and the
responsible party "notified" at the time of personal service; or the
successful delivery of the certified letter (or the third day after mailing of
the duplicate notice); or forty-eight (48) hours after the notice is posted on
the property; or when a facsimile is successfully transmitted to the
multiple property owner's agent for service of process. Actual notice shall
cure any defect in the effort to provide constructive notice.
c. Contents of Notice. The notice shall include the Municipal Code
section being violated; the property address/location where the graffiti has
been observed; the date(s) and time(s) the graffiti was observed; a
description of the corrective action required and time limit - including the
need to use paint which is similar in shade and color to the structure or
item the graffiti is painted on; the consequences of failing to comply, all
hearing/appeal rights; and the name of the issuing officer or staff member.
Ordinance 2997
Page 7
d. Securing Owner Consent. Prior to entering onto private property for
the purpose of graffiti removal, the City shall attempt to secure the written
or oral consent of the responsible party, which may be incorporated into
the required written notice. The responsible party may execute and file
with the City a consent form that authorizes the City, without notice, to
immediately enter onto the property to paint over any graffiti. Such
consent shall be effective indefinitely, until withdrawn in writing by the
responsible party.
e. Graffiti in "Privacy Areas". Unless a warrant or proper consent is
secured, the City shall not remove or paint over graffiti if it is located in an
area where the property owner or occupant has a reasonable expectation of
privacy ("privacy area"). Likewise, the City shall not remove or paint
over graffiti that is not in a privacy area if a privacy area must be entered
to abate said graffiti.
f. Pre-Abatement Conference. A responsible party may request, by
telephone, in writing, or in person, that an informal conference be held
before the City enters the party's property to abate graffiti. The request
for a conference shall stay the City's abatement efforts and must be made
within forty-eight (48) hours of being served notice pursuant to CVMC §
9.20.055 (B)(2)(a). The conference shall be conducted by the City
manager or his/her designee. The purpose of the conference shall be to
determine the propriety of the City's impending abatement action. A
decision on the validity of that action shall be made and communicated to
the responsible party before the end of the conference (unless a
continuance is necessary). If determined to be valid, the City may abate
the offending graffiti forty-eight (48) hours after the decision.
C. Ease of Removal Provisions.
I. Common Utility Colors and Paint Type. Any gas, telephone, water,
sewer, cable, telephone and other utility operating in the City, other than an
electric utility, shall paint their above-surface metal fixtures with a uniform paint
type and color which meets with the approval of the City Manager. Utility boxes
which are part of a beautification program (e.g., utility box artwork project) shall
be exempt from this requirement.
2. Conditional Encroachment Permits. All encroachment permits issued by
the City shall, among such other things, be conditioned on: (1) the immediate
removal by the permittee of any graffiti; (2) the right of the City to remove graffiti
or to paint the encroaching obj ect; (3) providing the City with sufficient matching
paint and/or anti-graffiti material on demand for use in the painting of the
encroaching object containing graffiti.
3. Conditional Tentative Maps. In approving tentative or parcel maps,
conditional use permits, variances, or other similar land use entitlements, the City
shall consider imposing any or all of the following conditions, or other similar or
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:
Ordinance 2997
Page 8
a. 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' posting of
notice, by authorized City employees or agents, to the City for the purpose
of removing or "painting over" graffiti from graffiti-attracting surfaces
previously designated by the director, and the right to remove such
graffiti; and
b. Supply City with Graffiti Removal Material. Developer shall, for a
period of two years atìer the resale of their tinallot, 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.
c. Owner to Immediately Remove Graffiti. Developer shall, either as part
of the conditions, covenants and restrictions, or as separate covenants
recorded against individual lots, prior to resale of same, covenant, which
covenant shall run with the land and be for the benefit of the City, in a
form satisfactory to the City, that the owner of the lots shall immediately
remove any graffiti placed thereon.
9.20.060
Prevention provisions.
A. Design of New Graffiti-Attracting Surfaces. Any applicant for design review
approval, conditional use permit, special use permit, unclassified use permit, development
agreement, or other form of development or building permit shall, to the extent deemed feasible
by the City Manager, or his or her designee, have designed any building structures visible from
any public or quasi-public place in such a manner as to consider prevention of graffiti, including,
but not limited to, the following: (1) use of additional lighting; (2) use of non solid fencing; (3)
use of landscaping designed to cover large expansive walls such as ivy or similar clinging
vegetation; and (4) use of architectural design to break up long continuous walls or solid areas.
B. Retrofit Existing Graffiti-Attracting Surfaces. The following preventative
measures may be ordered after providing adequate notice and the opportunity for a Chapter 1.30
abatement hearing. No graffiti need currently reside on the property before instituting such a
proceeding, The City must only show that the surface of a structure has been defaced more than
four (4) times in six (6) months and that the proposed retrofit is necessary and reasonable.
1. At Owner's Expense. Any surface of a structure on a parcel ofland which
has been defaced with graffiti more than four (4) times in six (6) months, or the
immediate area surrounding said surface, shall 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.
In exercising the authority hereunder, the city may not impose a cost on the
property owner greater than $750.
2. At City's Cost. The owner of property on which is located a surface of a
structure which has been defaced with graffiti more than four (4) times in six (6)
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
Ordinance 2997
Page 9
city as necessary to reduce the attractiveness of the surface for graffiti, or as
necessary to permit more convenient or efficient removal thereof.
9.20.065
Parental involvement provisions.
Parental Civil Liability. Any parent or other legal guardian who consents to, permits, or
otherwise knowingly allows her or his child under the age of 18 to possess a graffiti implement
shall be personally liable for any and all costs to any person (including public entities) 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.
9.20.070
Severability.
If any section, subsection, sentence, clause, phrase or portion of this chapter 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 this chapter.
The City Council declares that it would have adopted each section, subsection, sentence, clause,
phrase or portion thereof irrespective of the fact that anyone or more sections, subsections,
clauses, phrases or portions be declared invalid or unconstitutional.
SECTION II. This ordinance shall take effect and be in full force and effect on the thirtieth day
from and after its adoption.
Presented by
Approved as to form by
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Ann Moore
City Attorney
Ordinance 2997
Page 10
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 8th day of March, 2005, by the following vote:
AYES:
Councilmembers:
Castaneda, Davis, McCann, and Rindone
NAYS:
Councilmembers:
None
ABSENT:
Councilmembers:
Padilla
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Stephen C. Padilla, Mayor
ATTEST:
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Susan Bigelow, MMC, City erk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
CITY OF CHULA VISTA )
I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Ordinance No. 2997 had its first reading at a regular meeting held on the 1st day of March, 2005
and its second reading and adoption at a regular meeting of said City Council held on the 8th day
of March, 2005.
Executed this 8th day of March, 2005.
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Susan Bigelow, MMC, City Clerk