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Ordinance 1998-12ORDINANCE NO. 98-12 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY AMENDING THE GILROY CITY CODE CHAPTER 12.5, SECTIONS 12.5.1, 12.5.2, 12.5.3, 12.5.9, 12.5.10, AND 12.5.11 REGARDING REGULATION OF GRAFFITI. WHEREAS, graffiti is recognized as being detrimental to propeay values, degrading of the quality of life in the community, in furtherance of urban blight, inconsistent with policies furthering aesthetics and sound udoan design, and often connected to gang activity and, if not promptly removed, may lead to the spread of additional graffiti; and, WHEREAS, present provisions of the Gilroy City Code require further clarification regarding the collection of the enforcement costs that the City incurs for enforcing graffiti related offenses; these costs 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 personal or real property, the law enforcement costs incurred by the city in identifying and apprehending the person who created, caused, or committed the graffiti or other inscribed material on the publicly or privately owned real or personal property within the city; and, the costs of administering and monitoring the participation of a person, or if a minor, his or her parents or guardians, in a graffiti abatement or education program. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I: Chapter 12.5.1 is hereby amended to read as follows: "CHAPTER 12.5. REGULATION OF GRAFFITL Sec. 12.5.1. Council findings. \JH\412397 07 - 1- 8%070704706002 ORDINANCE NO. 98-12 The City Council of the City of Gilroy hereby finds and declares that graffiti is dm'mental to property values, promotes blight, degrades the quality of life in the community, is inconsistent with the city's property maintenance goals and aesthetic standards, is detrimental to the public health, safety and welfare, is often related to gang activity and may, therefore, lead to an increase in crime, and if not promptly removed may lead to the spread of additional graffiti. The council also finds that the greatest disincentive to graffiti and its spread to other properties is its prompt eradication. The council further finds and declares that the regulation of graffiti by the city is necessary in order to protect the public health, safety and welfare. The City Council further finds that graffiti is unlawful and a serious crime to the comrnunity and that the expense of abatement should be recovered for violations of this chapter. This chapter is intended to be complimentary to and not in conflict with Penal Code section 594, which provides that any person who maliciously defaces property is guilty of vandalism, and Penal Code section 594.1 which provides that certain activities involving the possession, sales and use of aerosol palm containers are misdemeanors." SECTION II: Chapter 12.5.2 is hereby amended to read as follows: "Sec. 12.5.2. Declaration of graffiti as a public nuisance. The City Council of the City of Gilroy hereby declares that graffiti is obnoxious and is a public nuisance which may be abated and that the expense of abatement and administrative costs may be collected pursuant to the procedures set forth in this Chapter." SECTION III: Chapter 12.5.3 is hereby amended to read as follows: "Sec. 12.5.3. Definitions. (a) Administrative costs. "Administrative costs" includes, but is not limited to, the costs incurred by the city for removal of the graffiti or other inscribed material from personal or real property, the costs of repair and replacement of defaced personal or real property; and, the costs incurred by the City in administering the graffiti abatement on privately or publicly owned personal or real property. (b) Aerosol paint container. "Aerosol paint container" means any aerosol container, regardless of the material kom which it is made, which is adapted or made for the purpose of spraying paint or other \JF1\412397 07 81-070704706002 -2- ORDINANCE NO. 98-12 subs~nce capable of defacing property. (c) Expense of abatement. "Expense of abatement" includes, but is 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 personal or real property, the law enforcement costs incurred by the city in identifying and apprehending the minor or person who created, caused, or committed the graffiti or other inscribed material on the publicly or privately owned real or personal property within the city; and, the costs of administering and monitoring the participation of a person, and if a minor, his or her parents or guardians, in a graffiti abatement program. (d) Felt tip marker. "Felt tip marker" means any marker or similar implement with a tip which at its broadest width is greater than three-eighths of an inch, containing ink or other pigmented liquid which cannot be removed with water after it dries. (e) Graffiti. For the purposes of this Chapter, "graffiti" includes any unauthorized inscription, writing, lettering, word, drawing, figure, marking, painting or design that is marked, written, etched, scratched, drawn, painted, or otherwise placed on any real or personal property. (0 Graffiti implement. "Graffiti implement" means an aerosol paint container, a felt tip marker, a paint stick or graffiti stick. (g) Minor. "Minor" means a person who is under the age of eighteen (18) years old. (h) Paint stick or graffiti stick. "Paint stick" or "graffiti stick" means a 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 three-eighths of an inch in width, which cannot be removed with water after it dries. (i) Real or personal property. For the purposes of this Chapter, "real or personal property" includes, but shall not be 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; and garbage receptacles." (j) Responsible Minor. "Responsible Minor" means a minor who has confessed to, admitted to, pled guilty to or pled nolo contendere to a violation of this chapter, or to a violation of section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code; or a minor convicted by a final judgment of a violation of this chapter, or to a violation of section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal \J~412397.07 81-070704706002 -3- ORDINANCE NO. 98-12 Code; or a minor declared a ward of the Juvenile Court pursuant to section 602 of the Welfare and Institutions Code by reason of the commission of an act prohibited by this chapter or by section 594, 594.3,640.5, 640.6, or 640.7 of the Penal Code. SECTION IV: Chapter 12.5.8 is hereby amended to read as follows: "Sec. 12.5.8. Graffiti removal. The city administrator shall have the right from to time to implement one or more programs for the removal of graffiti located on any public or private property within the city which is visible from any public right-of-way or public or private property, solely at the city's expense, unless the city elects to recover the expense of abatement and/or administrative costs, from third parties pursuant to Sections 12.5.7(d), 12.5.10 and 12.5.11, and without reimbursement from the owner or other person in control of real or personal property, upon the following conditions: (a) The prope~y owner or other person in control of such property should be encouraged to perform the removal with his/her own resources; (b) The city shall not paint or repak a more extensive area than is necessary to remove the graffiti, unless the city administrator or his/her designee determines that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the ndighborhood or commumty, or unless the propeity owner or other person in control of such property agrees to pay for the cost of repainting or repairing the more extensive area; and (c) The removal of the graffiti may be performed only after securing the consent of the property owner or other person in control of such property, and that individual executes a release and right of entry form permitting such graffiti removal." SECTION V: Chapter 12.5.9 is hereby amended to read as follows: "Sec.12.5.9. Abatement and cost recovery proceedings Notwithstanding the city administrator's right to implement graffiti \JH\412397 07 814)70704706002 -4- ORDINANCE NO. 98-12 removal programs pursuant to Section 12.5.8, k shall be the primary obligation of ail persons who own or are otherwise in control of any reai or personal property upon which graffiti has been placed, to cause the removal of such graffiti within forty-eight (48) hours after receiving the notice described in Section 12.5.9(a). The city administrator may cause the abatement and removal of graffiti on public or private property in accordance with the following procedure: (a) Notice. The city administrator or his/her designee shall issue a forty-eight (48) hour written notice of intention to abate the graffiti as a public nuisance and shall serve such notice by any of the following methods: (i) By personal service on the owner, occupant or person in charge or control of the property; (ii) By posting at a conspicuous place on the property or abutting public right-of-way; or ('fii) By sending a copy of such notice by registered or certified mail addressed to the owner or person in charge or control of the property, at the address shown on the last available assessment roll, or as otherwise known. (b) Form. The notice of intention shail be in substantially the following form: NOTICE OF INTENT TO REMOVE GRAFFITI (Name and address of person notified) Date: "NOTICE IS HEREBY GIVEN that you are required by Gilroy Municipal Code Section 12.5.9 at your expense to remove or paint over the graffiti in existence on the property located at (address), which is visible to public view, within forty-eight (48) hours after receipt of this notice; or, if you fail to do so, City employees or private contractors employed by the City will enter upon your property and abate the public nuisance by removai or painting over the graffiti. The administrative costs of abatement by the City employees or private contractors will be assessed against you and your property and such costs will constitute a lien upon such property unffl paid. At the conclusion of this forty-eight (48) hour period, without further notice and at your expense, the City may proceed with the abatement of the graffiti inscribed on your property unless you appeal the order of \JH\412397 07 81-070704706002 -5- ORDINANCE NO. 98-12 abatement to the City Council within the forty-eight (48) hour period referenced above. Any appeal shall be accompanied by a written statement of reasons and the payment of the filing fee established by the City Council." (c) Appeal. (i) Within forty-eight (48) hours after issuance of the notice described in Section 12.5.9(b), the owner or person occupying or controlling such property affected may appeal the order of abatement to the council. Appeals shall be filed with the city clerk and shall be accompanied by a letter staling the masons for the appeal and a fee as required by council resolution. The council shall hear such appeals; (ii) Within fifteen (15) days after receipt of the appeal application, the city clerk shall notif-/the applicant of the date, time and location at which the council shall hear the appeal. The counc'fl shall hear and pass upon the appeal within thirty (30) days after receipt of the appeal application. The decision of the council thereupon shall be final and conclusive. (d) Removal by city. Forty-eight (48) hours after service of the notice, or if appealed, not less than twenty-four (24) hours after the decision of the council declaring the graffiti to be a public nuisance, the city administrator is authorized and directed to cause the graffiti to be abated by the city or private contractor, and the city or its private contractor is expressly authorized to enter upon the property for such purposes. (e) Accounting. The city administrator shall keep an account of the cost of abatement and an itemized report to the city council shall be filed with the city clerk. Such report shall refer to each separate lot or parcel of land by description sufficient to identify such lot or parcel, together with the expense proposed be assessed against each separate lot or parcel of land. (0 Assessment of costs against owner or other person in control of property. The total administrative costs of abatement shall be a personal obligation of the owner or other person in control of the real or personal property upon which graffiti has been abated, and shall be paid by such owner or other person within thirty (30) days after receiving a demand for such payment from the city. Pursuant to Government Code Section 38773.5, the total administrafrve costs of abatement shall constitute a special assessment against the property subject to the graffiti abatement, if not paid in full within thirty (30) \JH\412397 07 81-070704706002 -6- ORDINANCE NO. 98-12 days after demand for such payment has been made by the city. After the assessment is made, it shall constitute a lien on the property subject to the graffiti abatement. The owner or other person in control of the real or personal property upon which graffiti has been abated shall not be relieved of any of its obligations or liabilities pursuant to this Section 12.5.9 by virtue of Section 12.5.9(g) below, or any other provision of this Chapter. (g) Assessment of costs against minor~ parent and/or guardian. (i) The total expense of abatement, including all administrative costs, shall also be a personal obligation of any minor responsible for the graffiti upon the property subject to the graffiti abatement, and shall be paid for by such minor within thirty (30) days after receiving a demand for such payment from the city. Pursuant to Government Code section 38773.6, the total expense of abatement and administrative costs shall constitute a lien against any real property owned by the minor, if such expense of abatement and administrative costs are not paid in full within thirty (30) days after demand for such payment has been made by the city. After the assessment is made, it shall constitute a lien against the real property of the minor. (ii) The parent or guardian having custody and control of the minor responsible for the graffiti upon the property subject to the graffiti abatement shall be jointly and severally liable with the minor, and the expense of abatement and administrative costs shall constitute a personal obligation of such parent or guardian. The total expense of the abatement and administrative costs, shall be paid for by a parent or guard'mn having custody or control of the minor within thirty (30) days after receiving a demand for such payment from the city. Pursuant to Government Code section 38773.6, the total expense of abatement, including all administrative costs, shall constitute a lien against any real property owned by the parent or guardian having custody or control of the minor, if such expense of abatement and administrative costs are not. paid in full within thir[y (30) days after demand for such payment has been made by the city. After the assessment is made, it shall constitute a lien against the real propeay owned by the parent or guardian having custody and control of the minor. (h) Imposition of Lien. (i) The city clerk shall post copies of the report referenced in Section 12.5.9(e) on the bulletin board in the council chambers at the City Hail in the city and on the bulletin board in the lobby of the city clerk's office located at the City Hall in the city, together with the \JH\41239707 81-070704706002 -7- ORDINANCE NO. 98-12 notice of the filing thereof and of the time and place when and where it will be submitted to the city council for hearing and confirmation, notifying property owners that they may appear at such time and place and object to any matter contained therein. A like notice shall also be published twice in a newspaper of general circulation, published and ckculated within the city. The posting and first publication of such notice shall be made and completed at least ten days before the time set for the hearing referenced in this subsection (h). In addition, such notice shall be served on the property owner at least ten (10) days before the heating referenced in subsection (h) below, by any of the following methods: (1) by personal service on the owner of such property; (2) by posting at a conspicuous place on the property which will be the subject of the special assessment; or (3) by sending a copy of such notice by registered or certified mail addressed to the owner of the property, at the address shown on the last available assessment roll for the property to be subject to the special assessment, or as otherwise known. (ii) The notice of intention given pursuant to this Section 12.5.9(h) shall be in substantially the following form: NOTICE OF INTENT TO IMPOSE SPECIAL ASSESSMENT (Name and address of person notified) Date: "NOTICE IS HEREBY GIVEN that pursuant to Section 12.5.9 of the Gilroy Municipal Code, graffiti was abated at that certain real property commonly known as . Notice is hereby given that you are required to pay for the expense of abatement, or admires' trative costs, or both, pursuant to CJilroy Municipal Code Section 12.5.9 within thirty (30) days after receipt of this notice. If you fail to do so, you shall be personally liable to the City for the payment of such amount, and such amount shall constitute a lien upon your real property located at ,Califomia. NOTICE IS FURTHER GIVEN that on , at the hour of __ o'clock p.m., in the Council's Chambers of Gilroy City Hall, the city administrator's report of the amount owed and the imposition of a special assessment lien upon your property shall be presented to the City Council of the City of Gikoy for consideration and confirmation, \J~412397.07 81-070704706002 -8- ORDINANCE NO. 98-12 and that any and all persons interested, having any objections to the amount owed or the imposition of such lien, may appear at said time and place and be heard." (iii) At the time and place fixed for considering the city administrator's report of the mount owed and the imposition of such special assessment, the City Council shall hear the same together with any objections which may be raised by any of the property owners liable to be assessed for the work of abating the graffiti. The city administrator shall attend such meeting with his record of the expense of abatement, or administrative costs, or both. Upon such hearing, the City Council may make such modifications in the proposed assessment therefor as it may deem necessary, if any, after which such report and assessment shall be confirmed by resolution. The entire expense of abatement, or administrative costs, or both, shall constitute a special assessment against the real property and after thus made and cmff~rmed shall constitute a lien on such property for the amount of such assessment until paid, if not paid within thirty (30) days after the notice referred to in Section 12.5.9(h)(ii) above is delivered to the property owner. (i) Collection. The director of finance shall cause the amount of any special assessment imposed pursuant to this Section 12.5.9 to be entered on the city assessment roll opposite the description of the particular property to be assessed, and the amount shall be collected together with all other taxes thereon upon the property. Thereafter, such amounts shall be collected at the same time and in the same manner as general city taxes are collected and shall be subject to the same penalties and interest and the same procedure and sale in case of delinquency as provided for city taxes. All laws and ordinances applicable to the levy, collection and enforcement of city taxes are hereby made applicable to such special assessments. The property owner has the option, if he so desires, of paying the assessment directly to the collector's office before such entry on such assessment role." SECTION VI: Chapter 12.5.10 is hereby amended to read as follows: "Sec. 12.5.10. Recovery of expenses or costs. (a) Any responsible minor or person who created, caused, or committed the graffiti or other inscribed material on pubhcly or privately owned personal or real property within the city shall be liable \JH\412397 07 81-070704706002 -9- ORDINJkNCE NO. 98-12 to the city for the expense of abatement of such graffiti and admirfistrative costs. (b) Any responsible minor or person owing money to the city under this section shall be liable in any action brought in the name of the city for the recovery of the expense of abatement of such graffiti and administrative costs." SECTION VI: Chapter 12.5.11 is hereby amended to read as follows: "Sec. 12.5.11. Parental liability. (i) Any parent or other legal guardian who consents to, permits, or otherwise knowingly allows his or her minor to possess a graffiti implement shall be personally liable for the expense of abatement and administrative costs which are incurred by any person in connection with the graffiti caused by said minor or by the graffiti implement. Liability pursuant to this section shall be in addition to any other liability imposed by law, including without limitation California Civil Code section 1714.1. (ii) Whenever any minor who created, caused, or committed the graffti or other inscribed material on publicly or privately owned personal or real property within the city, or any minor against whom a fine, levy, expense of abatement and administrative costs are assessed pursuant to this chapter, that minor's parent or legal gaardian shall be liable to the city for the expense of abatement and such fine, levy or administrative costs." SECTION VII: This ordinance shall take effect and be in full force thirty (30) days fxom and after its adoption and approval. SECTION VIII: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional, such decision shall not affect the validity of the other remaining portions of \JH\412397.07 81-070704706002 -10- ORDINANCE NO. 98-12 this ordinance. The City Council of the City of Gilroy hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional. PASSED AND ADOPTED this 6th day of July, 1998 by the following vote: AYE S: NOES: ABSENT: COUNCILMEMBERS: ARELLANO, GIFFORD, MORALES, ROWLISON, SPRINGER, SUDOL, GILROY COUNC1LMEMBERS: NONE COUNCILMEMBERS: NONE APPROVED: ~.A. Igfike Gilroy, -Mayor ATTEST: Rhonda pellin, City Clerk \JH\412397.07 814)70704706002 -ll- ORDIN.~q'CE NO. 98-12 I, RHONDA PELLIN, City Clerk of the City of Cdlroy, do hereby certify that the attached Ordinance No. 98-12 is an original ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 6th day of July, 1998, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 9th day of July, 1998. City Clerk of the City of Gilroy (Seal)