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HomeMy WebLinkAbout11A - ORDINANCE GRAFFITI REGULATIONORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING THE SANTA ANA MUNICPAL CODE TO UPDATE THE CITY'S REGULATION OF GRAFFITI. THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Council finds and determines that the spread of graffiti on public and private buildings, walls, signs and other structures or places or other surfaces causes blight within the City, resulting in a genuine threat to life, incalculable economic losses to businesses in terms of physical property, profits and goodwill, and the general deterioration of property and business values for adjacent and surrounding properties. B. The Council further finds and determines that the impacts of graffiti are far beyond the cost of cleanup or removal. Not only is graffiti a property crime, but a social crime on the quality of life and freedom from intimidation citizens desire within their neighborhoods. C. The City Council intends, through the adoption of this Ordinance, to provide additional enforcement tools to protect public and private property from acts of graffiti vandalism and defacement, to prevent the spread of graffiti vandalism, protect public safety, to establish a program for the expeditious removal of graffiti from structures on public and private property, and to permit recoupment of enforcement and abatement costs to the taxpayers of the City. D. The City Council is authorized to enact this Ordinance pursuant to its police powers as specified in Section 200 of the City Charter, as well as various provision of State Law including Sections 1714, et seq. of the California Civil Code and Sections 38772, et seq. of the California Government Code. E. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of Section 418 of the City Charter. Any such restatement of existing Ordinance No. NS-XXX 11 A-1 Page 1 of 13 provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. In accordance with the California Environmental Quality Act, the proposed project is exempt from further review. Categorical Exemption ER 2009-107 will be filed for the project. Pursuant to Title XIV, California Code of Regulations ("CCR") § 735.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. Therefore, pursuant to Fish and Game Code § 711.2 and Title XIV, CCR § 735.5(a)(3), the payment of Fish and Game Department filing fees is not required in conjunction with this project. Section 3. Sections 10-177 and 10-178 of Article II of Chapter 10 of the Santa Ana Municipal Code relate to controlling sale and access by minor to pressurized paint cans and other graffiti implements. Article V of Chapter 17 of the Santa Ana Municipal Code relates to abatement of graffiti in the City of Santa Ana. In the interest of comprehensive regulation, the aforementioned sections of the Santa Ana Municipal Code should be consolidated in one Article of the Code. Therefore, Article IV of Chapter 10 of the Santa Ana Municipal Code shalt hereafter be designated as "Graffiti Regulations". Section 4. Section 17-70 of the Santa Ana Municipal Code is hereby re- designated as Section 10-221 and amended such that it reads as follows Sec. 10-221. Definitions. For the purposes of this chapter, the following words and terms shall have the meaning ascribed thereto: (a) Graffiti means any unauthorized inscription, word, figure, mark, adhesive sticker or design that is written, marked, etched, scratched, drawn, painted, labeled, pasted, applied or affixed, on any surface of public or private real or personal property, including, but not limited to, buildings, walls, windows, signs, structures, places or other surfaces regardless of the nature of the material of which the surface is composed. (b) Graffiti implement means any implement capable of marking, scarring, damaging, or defacing any surface to create graffiti, including, but not limited to, aerosol paint containers, felt tip markers, paint sticks or graffiti sticks, etching tools, adhesive stickers, spray Ordinance No. NS-XXX Page 2 of 13 11 A-2 actuators, marking pens, drill bits, grinding stones or any other similar implement. (c) Aerosol paint container means any aerosol container, regardless of the material from which it is made, that is adapted or made for the purpose of spraying paint or other substances capable of defacing property. (d) Felt tip marker means any broad-tipped marker pen with a tip which, at its broadest width, is greater than one-sixteenth (1/16) of an one inch or any other similar implement containing an ink that is not water soluble. (e) 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 that, upon application, leaves a visible mark on the surface at least one-sixteenth (1/16) of an inch in width or is not water soluble. (f) Adhesive Stickers means any sheet of paper, fabric, plastic or other material with an adhesive, paste, or gummed backing, which; when applied or affixed to any surface either creates a permanent contact or is not easily removable without the use of solvents. (g) Property means personal or real property. (h) Etching tool means any sharp or pointed instrument, that is capable of etching or marking glass, plastic, wood, metal, or concrete surfaces, including, but not limited to, picks, scribes, awls, chisels, markers, and etchers, or any masonry or glass drill bit, carbide drill bit, glass cutter, grinding stone, etching cream or acid etching solution. (i) Expense of Abatement, Abatement Expenses, Costs of the Abatement, and/or Abatement and related administrative costs include, but are not limited to, court costs, attorneys fees, costs of removal of the graffiti or other inscribed material, costs of repair or replacement of defaced property, and the law enforcement costs incurred by the City and/or any other public agency as authorized pursuant to Government Code Section 38772(d)(1). (j) Graffiti violations of law are those violations referred to in Government Code Section 38772(d)(3) and any violation of this Article. Ordinance No. NS-XXX 11 A-3 Page 3 of 13 (k) Spray actuator (also known as a spray tip, nozzle, or button) means an object or device that is capable of being attached to an aerosol or other paint container for the purpose of spraying the substance contained therein. Section 5. Sections 10-177, 10-178 and 10-178.1 of the Santa Ana Municipal Code are hereby re-designated as Sections 10-222, 10-223 and 10- 223.1,respectively, and amended such that they reads as follows: Sec. 10-222. Sale and Possession (a) Sale of Graffiti Implements to Minors. It shall be unlawful for any person, other than a parent or legal guardian, to sell exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged, given, loaned, or otherwise furnished, any aerosol paint container, broad-tipped marker, gum/paste/self-adhesive label or sticker, etching cream, spray actuator, or paint stick to anyone under the age of eighteen (18) years without the written consent of the parents or guardian of the minor, and no person under the age of eighteen (18) years shall purchase any pressurized can containing paint or dye. (b) Possession In Designated Public Places. It shall be unlawful for any person to possess any graffiti implement, with the intent to use or apply graffiti, while in or upon any public facility, park, playground, swimming pool, recreational facility or zoo or other public building or structure owned or operated by +r~ the City of Santa Ana, or while in or within fifty (50) feet of an underpass, bridge abutment, storm channel, or similar types of infrastructure unless otherwise authorized by the City. This section shall not apply to authorized employees of the City of Santa Ana or an individual or authorized employee of an individual, agency or company under contract with the City of Santa Ana. (c) Possession 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 while on school property, grounds, facilities, buildings, structures, or in areas immediately adjacent to those specific locations upon public property, or upon private property without 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 is a class at the school that formally requires the possession of broad-tipped markers. The burden of proof in any prosecution for violation of the Section shall be upon the minor student to establish the need to possess abroad-tipped marker. Ordinance No. NS-XXX Page 4 of 13 11 A-4 Sec. 10-223. Public access; Signage. (a) Paints and Markers. Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol containers, paint sticks, glass etching solution, or broad-tipped markers shall store these items in an area continuously observable, through direct visual observation or surveillance equipment, by employees of the retail establishment during the regular course of business. In the event that a commercial retail establishment is unable to store the aerosol paint containers, paint sticks, glass etching solution, or broad-tipped markers in an area as provided above, the establishment shall store the containers, sticks, and markers in an area not accessible to the public without employee assistance. (b) Etching Tools. Every person who owns, conducts, operates or manages a retail commercial establishment selling masonry or glass drill bits, carbide drill bit, glass cutters, grinding stones, awls, chisels or carbide scribes, shall store or cause such items to be stored in an area viewable by, but not accessible to, the public in the regular course of business without employee assistance, pending legal sale or disposition of such items. (c) Customer Signage. Every retail commercial establishment selling graffiti implements shall post a sign in clear public view at or near display of such products stating: "Pursuant to Penal Code Section 594.1, place a sign in clear public view at or near the display of such products stating: "Graffiti is against the law. Any person who defaces real or personal property with paint or any other liquid or device is guilty of a crime punishable by imprisonment of up to 6 months and/or a fine up to $1000". (d) Additional Signage. Every retail commercial establishment selling graffiti implements shall place a sign in the direct view of such persons responsible for accepting customer payment for graffiti implements stating: "Selling spray paint, paint sticks, or broad-tipped markers to persons less than eighteen (18) years of age is against the law and punishable by a fine of $1000". Sec. 2-223.1. Graffiti Prohibited. (a) Defacement. It shall be unlawful for any person to apply graffiti to any natural or manmade surface on any public or private-owned property or, without permission of the owner or occupant. (b) Directing, Aiding and Abetting. It shall be unlawful for any person to solicit or command another person to apply graffiti, or for any person to aid or abet or agree to aid or abet another person to plan to apply or apply graffiti. Ordinance No. NS-XXX 11 A-5 Page 5 of 13 Section 6. Sections 10-224 through 10-225 are added to Chapter 10 of the Santa Ana Municipal Code to read in full as follows: Sec. 10-224. Penalties and other Remedies. Any person violating this Ordinance shall be guilty of a misdemeanor as defined in this Code. Sec. 10-224.1 Parental Liability (a) In the case of a minor, the parents or legal guardian shall liable with the minor for payment of all fines. (b) Failure of the parents or legal guardian to make payment will result in the imposition of an abatement assessment against the parents' or legal guardian's property that includes the fine and administrative costs. (c) Upon and application and finding of indigence, the court may decline to order fines against the minor, parents or guardian. Sec. 10-224.2 Restitution In addition to any punishment specified in the court shall order any violator to make restitution to the victim for damages or loss caused directly or indirectly by the violator's offense in the amount or manner determined by the court. In the case of a minor, the parents or legal guardian shall be ordered with the minor to make restitution. Sec. 10-224.3 Forfeiture All personal property, including, but not limited to, automobiles, motorcycles, scooters, bicycles or skateboards, used or intended to be used in violating this Ordinance shall be forfeitable to the City. In forfeiting such personal property, the City shall follow procedures outlined in this Code concerning forfeitures of personal property. In any forfeiture proceeding initiated under this Section, the court shall not order forteiture unless it finds that the forfeiture is commensurate with the severity of the violation to the extent required by the United States Constitution. Ordinance No. NS-XXX Page 6 of 13 11 A-6 Sec. 10-224.4 Community Service In lieu of, as part of, or in addition to the penalties specified in this section, a minor or adult shall be required to perform community service as described by the court based on the following minimum requirements: (a) The minor or adult shall perform not less than forty (40) hours of community service for the first offense, not less than eighty (80) for the second, and not less than one hundred twenty (120) for a third or subsequent offense. (b) At least one parent or guardian of the minor shall be in attendance a minimum of fifty percent (50%) of the assigned community service. (c) The period of community service shall be performed under the supervision of a community service provider approved by the Chief of Police. (d) Reasonable effort shall be made to assign the minor or adult to a type of community service that is reasonably expected to have the most rehabilitative effect on the minor or adult, including community service that involves graffiti removal. (e) Any minor determined to be a ward of the court under State Law as a result of committing an offense in the City shall be required, at the City's option, to perform community service, including graffiti removal service of not less than forty (40) hours nor more than eighty (80) hours. Sec. 10-225. Trust Fund. The City Council hereby creates the City of Santa Ana Anti-Graffiti Trust Fund. Penalties assessed against violators of this Ordinance shall be placed in the fund, along with assessments and judgments collected pursuant to this Article, as well as any monetary donations received from individuals or from the business community wishing to contribute to the fund. The Council shall direct the expenditures of monies in the fund. Such expenditures shall be restricted to the payment of the cost of graffiti removal, the payment of rewards pursuant to Section 10-226 of this Article and such other public purposes as may be approved by the Council. Ordinance No. NS-XXX 11 A-7 Page 7 of 13 Section 7. Sections 17-70.1 and 17.70.2 of the Santa Ana Municipal Code are hereby re-designated as Sections 10-226 and 10-227, respectively, and amended to read as follows: Sec. 10-226. Reward provisions. (a) Pursuant to Section 53069.5 of the Government Code, the city may offer a reward for information leading to the apprehension and conviction of any person who places graffiti on any public or private property in such amounts approved by the City Council. In the event of multiple contributors of information, the reward amount shall be divided by the city in a 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. (b) Claims for rewards under this section shall be filed with the City in a manner specified by City Council. (c) The person convicted of committing the graffiti offense shall be liable for any rewards paid pursuant to this section and, if that person is an unemancipated minor, the custodial parent of said minor shall be liable for any rewards paid pursuant to this section. In the event of damage to public or private property, the offender or the parents or legal guardian of any unemancipated minor must reimburse the City for any reward paid. (d) No law enforcement officer, municipal officer, official or employee of the City shall be eligible for a reward made pursuant to this section. (e) No claim for a reward shall be allowed unless the City investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied. Sec. 10-227. Graffiti as a Nuisance; City Abatement. (a) The existence of graffiti within the city limits of Santa Ana constitutes a public and private nuisance and may be abated according to the provisions and procedures contained in this Article. (b) Removal by the Perpetrator. Any person applying graffiti on public or private property shall have the duty to remove the graffiti within twenty-four (24) hours after notice by the City or private owner of the property involved. Such removal shall be done in a manner prescribed by the Executive Director of Public Works or other designated City official. Failure of any person to remove graffiti shall constitute an additional violation of this Ordinance. Where graffiti is Ordinance No. NS-XXX Page 8 of 13 11 A-8 applied by an minor, the parents or legal guardian having custody and control of the minor shall also be responsible for such removal. (c) Removal by City. Whenever the City becomes aware of or is notified and determines that graffiti is located on publicly or privately owned property capable of being viewed from any public right-of-way or from a public or quasi-public place, the City is authorized to use public funds to remove the graffiti, by painting, repairing, water blasting, or other graffiti removal technique, to that degree reasonably necessary to restore the defaced area and to avoid an aesthetic disfigurement to the neighborhood or community. (d) Right of Entry on Private Property. Prior to entering upon private property or property owned by a public entity other than the City for the purpose of graffiti removal, the City shall attempt to secure the consent of the property owner or responsible party and a release of the City from liability for property damage or personal injury. If the property owner or responsible party fails to remove the offending graffiti within the time specified by this Ordinance, or if the City has requested consent to remove or paint over the offending graffiti and the property owner or responsible party has refused consent for entry on terms acceptable to the City and consistent with the terms of this Section, the City shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified in Section 10-228, below. (e) Recovery of Costs. The City reserves the right to recover City costs and expenses from any person who has willfully damaged property in a manner described in subsection (a), above, pursuant to the provisions of this Article, Penal Code Section 594, Civil Code Sections 731 and 1714.1 and Government Code Sections 38771, et seq. Section 8. Section 10-228 is added to Chapter 10 of the Santa Ana Municipal Code to read as follows: Sec. 10-228. Abatement by Property Owner. (a) Property Owner Responsibility. Any person who is the owner or who has primary responsibility for control of private property or for repair or maintenance of private property in the City must abate graffiti as set forth below. (b) Failure to Remove. If the property owner has not removed the graffiti within ten (10) days after its appearance or has refused consent to the City to enter the property and abate the nuisance, the City may, pursuant to this Section, remove graffiti at the owner's an expense as a public nuisance and to assess the property for such abatement costs in accordance the procedures set forth in Chapter 17, Sections 17-1 through 17-43 of the Santa Ana Municipal Code. Ordinance No. NS-XXX 11 A-9 Page 9 of 13 (c) Exceptions to the Removal Requirement. The removal requirements identified in this section shall not apply if the property owner or responsible party can demonstrate that the property owner or responsible party lacks the financial ability to remove the graffiti; or the property owner or responsible party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program. In such case it shall be unlawful to permit such property to remain defaced with graffiti for a period of ten (10) days after service by first class mail of notice of the defacement. Section 9. Sections 10-229 through 10-233 are added to Chapter 10 of the Santa Ana Municipal Code to read in full as follows: Sec. 10-229. Minor and Parental Financial Responsibility for Graffiti Violations of Law. (a) Pursuant to Government Code Sections 38772, 38773.2, and 38773.6, the City Council hereby makes the expense of abatement of graffiti violations of law committed by minor a personal obligation of both the minor causing the graffiti nuisance and the parent(s) or legal guardian(s) having custody and control of the minor (who shall be jointly and severally liable with the minor), and an assessment against the property of the minor or an assessment against the property of the parent(s) or legal guardian(s) having custody and control of the minor. (b) Pursuant to Government Code Section 38772(c), the County Probation Officer shall report the names and addresses of parent(s) or legal guardian(s) having custody and control of the minor responsible for a violation of this Chapter to the Clerk of the Council. (c) Pursuant to Government Code Section 38773.7, upon a second or subsequent civil or criminal judgment within atwo-year period, the City may find that the minor causing the graffiti nuisance and the parent(s) or legal guardian(s) having custody and control of the minor is responsible for the graffiti and request the court to impose treble damages. (d) Parental Liability. Pursuant Civil Code Section 1714.1, any parent or legal guardian of a minor shall be personally liable for any and all costs to the City or any person or business incurred in connection with the removal of graffiti caused by 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 up to twenty-five thousand dollars ($25,000). Ordinance No. NS-XXX Page 10 of 13 11A-10 Sec. 10-230. Defendant Liability for Cost of Graffiti Abatement. (a) Defendant's liability for cost of graffiti abatement. When the disposition of a criminal case or a proceeding pursuant to Welfare and Institutions Code Section 602 determines that the defendant in that case is responsible for creating, causing or committing the graffiti which was abated by the City, that same defendant shall be liable for all 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 defendant 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. (b) Adult Defendant Presumption. The determination of responsibility 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. (c) Juvenile Offender Presumption. In the case of a minor defendant, responsibility shall 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. (d) Adult Civil Actions. The City may bring a civil action in the Superior Court to obtain a money judgment against a defendant for any amount not ordered or collected by the criminal court, including, but not limited to, all attorney's fees, court costs, and civil penalties incurred in connection with the civil prosecution of any claim for damages or reimbursement. (e) Juvenile Civil Actions. The City may bring a civil action in the Superior Court to obtain a money judgment against a juvenile offender and/or his or her parent(s) or guardian(s) having custody and control of the juvenile offender for any amount not ordered or collected by the juvenile court, including, but not limited to, all attorney's fees, court costs, and civil penalties incurred in connection with the civil prosecution of any claim for damages or reimbursement. Sec. 10-231. Reserved Ordinance No. NS-XXX 11 A-11 Page 11 of 13 Sec. 10-232. Assessment, Procedures. Pursuant to Government Code Section 38773.6 the City may recover its costs to abate any graffiti through assessment procedures set forth in Sections 17-40 through 17-43 of the Santa Ana Municipal Code. Section 10-233. Remedies Not Exclusive. Remedies provided for the enforcement of this Article are in addition to and do not supersede or limit any and all other remedies provided by law. The remedies provided herein are cumulative and not exclusive. Section 10. If any section, subsection, sentence, clause, phrase 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 this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of APPROVED AS TO FORM: Joseph W. Fletcher City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Ordinance No. NS-XXX Page 12 of 13 Councilmembers Councilmembers Councilmembers Councilmembers 2009 Miguel A. Pulido Mayor 11A-12 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX 11 A-13 Page 13 of 13 11A-14