HomeMy Public PortalAboutOrd. 1536ORDINANCE NO. 1536
AN ORDINANCE OF THE CITY OF LYNWOOD
REPLACING SECTION 3 -14 (GRAFFITI REMOVAL) TO
CHAPTER 3 (PUBLIC SAFETY REGULATIONS) AND
ADDING SECTION 3 -14 (GRAFFITI) TO CHAPTER 3 OF
THE LYNWOOD MUNICIPAL CODE RELATING TO
GRAFFITI ON REAL AND PERSONAL PROPERTY
WHEREAS, the City of Lynwood, under its police power, has the authority to
take action where the potential exists for jeopardy to the public welfare, health and safety
of its citizens;
WHEREAS, the City is concerned with the proliferation of graffiti on structures
and/or real and personal property throughout the City and has determined that the
establishment and enforcement of an ordinance prohibiting graffiti is an effective and
necessary means to decrease crime, violence and victimization;
WHEREAS, the inscription or affixation of graffiti on structures and/or real and
personal property visible from any publicly owned property constitutes an obnoxious
public nuisance;
WHEREAS, the City has expended a significant amount of public resources
abating graffiti and has determined that those costs should be recovered from any person
who created, caused or committed the graffiti or other inscribed or affixed material on
publicly or privately owned structures and real and /or personal property within the City;
WHEREAS, the City Council finds and determines that having an enforceable
ordinance targeted at graffiti is critical to preserving the public health, safety and welfare
of all citizens in the City.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of
Lynwood as follows:
SECTION 1. Section 3 -14 (Graffiti Removal) is hereby replaced in its entirety
with the following Section 3 -14 (Graffiti), Chapter 3 (Public Safety Regulations), of the
Lynwood Municipal Code to read as follows:
3 -14.1 Intent.
3 -14.2 Findings.
3 -14.3 Definitions.
3 -14.4 Removal of graffiti.
3 -14.5 Storage, display and sale of aerosol spray paint containers, etching
cream and rnarker pens.
3 -14.6 Possession Prohibition of spray paint in public parks and buildings.
3 -14.7 Rewards.
3 -14.8 Recovery of law enforcement costs.
3 -14.9 Nuisance abatement.
3 -14.10 Additional remedies.
3 -14.11 Suspension or delay of driving privileges.
3 -14.12 Parental Responsibility
3 -14.13 Failure to Remove Graffiti Upon Notice — Penalty
3 -14.14 Penalty for Violation of Ordinance
3 -14.15 Community Service
3 -14.16 Additional Remedies
3 -14.17 Violation
3 -14.18 Severability
3 -14.1 Intent
It is the intent of the provisions of this chapter to provide an immediate and practical
method, to be cumulative with and in addition to any other remedy available at law,
whereby graffiti or other inscribed or affixed material may be removed from permanent
structures located on public or privately owned real property in order to reduce blight and
deterioration within the City.
3 -14.2 Findings
Graffiti constitutes an obnoxious public nuisance. The City Council finds that graffiti
or other inscribed or affixed materials placed upon any permanent structure, real or
personal property visible from any publicly owned property, is found to be obnoxious and
constitutes a public nuisance. As such, the City may abate graffiti as a nuisance and
recover its costs in abating the nuisance pursuant to this Section 3 -13 of this Code. Such
costs include, but are not limited to, court costs, attorneys' fees, rewards, costs of
removal of the graffiti, costs of repair and replacement of defaced property, costs of
administering and monitoring the participation of the defendant and his or her parents or
guardians in a graffiti abatement program, and the law enforcement costs incurred by the
City in identifying and apprehending the person who created, caused or committed the
graffiti or other inscribed or affixed material on the publicly or privately owned real or
personal property within the City.
3 -14.3 Definitions
For the purposes of this chapter, unless it is plainly evident from the context that a
different meaning is intended, the following definitions shall apply:
"Aerosol paint container" means any aerosol container which is adapted or made
for the purpose of spraying paint or other substance capable of defacing property.
"Etching tool" means an instrument; tool or device designed or commonly used
for making, cutting or defacing glass and includes devices designed for marking surfaces
and capable of marking glass.
"Etching cream" means any caustic cream, gel, liquid, or solution capable, by
means of a chemical action, of defacing, damaging, or destroying hard surfaces in a
manner similar to acid.
"Expense of abatement" includes, but is not limited to, court costs, attorneys'
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, Los
Angeles County, or the City and county in identifying and apprehending the minor or
other person who placed the graffiti on real or personal property.
"Felt tip marker" means any indelible marker or similar implement with a tip
which, at its broadest width is greater than four millimeters, containing ink that is not
water soluble.
"Graffiti" means any inscription, word, figure, mark or design which is written,
marked, etched, scratched, scribed, drawn, painted, posted or otherwise affixed to or on
real or personal property.
"Graffiti implement" means any aerosol container, etching cream, felt tip marker,
paint stick, etching instrument, stickers, decals, stencils or any other device containing
paint, ink, chalk, dye or similar substance which when used or applied is capable of
defacing glass, metal, concrete or wood.
"Minor" means a person who is under 18 years of age.
"Parent" means either parent if both parents have legal custody, or the parent or
person having legal custody, or the guardian of a minor.
"Responsible party" means an owner of property located within the City, a person
with primary responsibility for control of property within the City or a person with
primary responsibility for the repair or maintenance of property within the City.
3 -14.4 Removal of graffiti
A. Right of City to Require Removal. It is unlawful for any responsible parry to
permit the property which is defaced with graffiti to remain so defaced for a period of 48
hours after telephonic notice or posting of notice by City on the property. This
prohibition does not apply i£
1. The responsible party demonstrates by a preponderance of evidence that
he or she does not have the financial ability to remove the defacing graffiti; or
2. The responsible party demonstrates that he or she has an active program
for the removal of graffiti and has scheduled the removal of the graffiti as part of that
program, in which case it is unlawful to permit such property to remain defaced with
graffiti for a period of three (3) calendar days after written notice is posted on the
property and mailed first -class postage prepaid to the address of the property.
B. Right of City to Remove.
1. Use of Public Funds. Whenever the City becomes aware, or is notified and
determines that graffiti is located on public or privately owned property, is viewable from
a public or quasi- public place within the City, the City is authorized to use public funds
for the removal, repair or replacement of the same. The City will not authorize or
undertake to remove, repair or replace any more extensive area than that where the
graffiti is located, unless the City determines that a more extensive area is required to be
repainted or repaired in order to avoid aesthetic disfigurement to the neighborhood or
community, or unless the responsible party agrees to pay for the costs of repainting or
repairing the more extensive area.
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2. Right of Entry on Private Property.
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a. Securing Owner Consent. Prior to entering private property, or property
owned by another public entity, for the purposes of graffiti removal, the City shall
attempt to secure the consent of the responsible party and a release of the City from
liability for private or public property damage.
b. Failure to Obtain Owner Consent. The City may commence abatement and
cost recovery proceedings for the removal of the graffiti pursuant to the provisions this
Chapter of this code.
C. Method of Removal.
1. 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, will paint their above - surface metal fixtures installed after the effective date of
this chapter, with a uniform paint type and color.
2. Conditions on Encroachment Permits. Encroachment permits issued by the
City may, among other things, be conditioned on any of the following: (i) the permittee
applying an anti - graffiti material to the encroaching object or structure of a type and
nature that is acceptable to the City; (ii) the immediate removal by the permittee of any
graffiti; (iii) the right of the City to remove graffiti or to paint the encroaching object or
structure; (iv) the permittee providing City with sufficient matching paint and/or anti -
graffiti material on demand for use in the painting of the encroaching object or structure
containing graffiti.
3. Conditions on Discretionary Approvals. In imposing conditions upon
unclassified use permits, variances, building permits, design or development applications
or other similar land use entitlements, the City may impose graffiti removal requirements
or any or all of the following conditions:
a. Use of Anti - Graffiti Material. The applicant must apply an anti - graffiti
material to publicly viewable surfaces which will be constructed on the site and which the
City deems are likely to attract graffiti (referred to hereafter as "graffiti attracting
surfaces "). Such material must be approved by the City in advance.
b. Right of Access to Remove Graffiti. The applicant must grant to the City,
in writing, the right of entry over and access to such parcels for the purpose of removing
or "painting over" graffiti on graffiti attracting surfaces previously designated by the
City. Such entry will only be allowed upon forty -eight hours posted notice. This grant
will be an express condition of approval and will run with the land.
C. Supply City with Graffiti- Removal Material. For a specified period of
years after approval, the applicant, and any and all successors in interest, must provide
the City with sufficient matching paint and/or anti - graffiti material on demand for use in
the painting over or removal of graffiti on the designated graffiti attracting surfaces.
d. Owner to Immediately Remove Graffiti. Persons applying for subdivision
maps must, as part of the conditions, covenants and restrictions, covenant that the owners
of the lots will immediately remove any graffiti placed on publicly viewable trees and
structures thereon to the City's satisfaction. Such covenants will run with the land and
must be in a form satisfactory to the City.
D. Preservation Procedures Adopted Pursuant to California Government
Code Section 53069.3(c) (2). Prior to or during removal, the City will follow any
procedures adopted by the Los Angeles County Sheriff's Department for pre- removal
preservation of sufficient evidence of the graffiti for criminal prosecutions or proceedings
under Section 602 of the Welfare and Institutions Code.
3 -14.5 Storage, display and sale of aerosol spray paint containers, etching
cream and marker pens
Any person who owns, conducts, operates, manages or carries on any business,
company, shop or retail commercial enterprise, including without limitation, any swap
meet or garage sale, which sells aerosol spray paint containers, marker pens with tips
exceeding four millimeters in width or etching cream, containing anything other than a
solution which can be removed with water after it dries, shall cause such aerosol
containers, marker pens or etching cream to be stored, maintained or displayed in a place
or manner which is locked or secured so as not to be accessible to the public except with
the assistance of the seller or the seller's employees.
3 -14.6 Possession — Prohibition of spray paint in public parks and buildings
Pursuant to California Penal Code Section 594.1(d), it is unlawful for any person to
carry on his or her person and in plain view to the public etching cream or an aerosol
container of paint while in any posted facility, park, playground, swimming pool, or
recreational area owned, operated or maintained by the City (other than a highway, street
or alley). This prohibition against possession does not apply to authorized employees or
agents of the City or a person having the authorization of an authorized employee or
agent of the City. The community services director, or his or her designee, will post a
notice at appropriate locations indicating that, pursuant to California Penal Code Section
594.1(d), no person shall possess etching cream or any can of spray paint in that City -
owned building, park, playground, swimming pool, recreational area or other City facility
without the permission of an authorized City officer.
3 -14.7 Rewards
Pursuant to California Government Code Section 53069.5, the City may, from time to
time, offer a reward in an amount set by resolution of the City Council for information
leading to the arrest and conviction of any person for violation within the City of
California Penal Code Sections 594, 594.3, 640, 640.5, or 640.6.
A. In the event of multiple, verifiable sources of information, the City or its
designee will divide the reward in the manner it deems appropriate.
B. For the purposes of this section, diversion of the violator to a community
service program, or a plea bargain to a lesser offense, constitutes a conviction.
C.
Claims for rewards under this section must be filed with the City or its
designee prior to the conviction of a person and must:
1. Specifically identify the date, location and kind of property damaged or
destroyed;
2. Identify by name the person who was convicted;
Identify the court and the date upon which the conviction occurred; and
4. Be in writing and filed within ninety days of such conviction.
D. No reward will be granted until the City or its designee investigates and
verifies the accuracy of the claim and determines that the requirements of this section
have been satisfied.
E. The person committing the graffiti- vandalism, and if a minor, then his or
her parent or lawful guardian will be civilly liable for any reward paid pursuant to this
section and Government Code Section 53069.5.
3 -14.8 Recovery of law enforcement costs
A. Pursuant to California Penal Code Section 594, the court may order a
person convicted of violating California Penal Code Section 594 to pay all or part of the
law enforcement costs incurred in identifying and apprehending the defendant. The court
will first determine whether the defendant has the ability to pay the costs, not exceeding
two hundred fifty dollars. If the defendant does have such ability, the court will order
defendant to pay the costs; however, such order shall not exceed two hundred fifty
dollars. The law enforcement agency must provide evidence of, and bears the burden of
establishing the reasonableness of, such costs.
B. The law enforcement costs authorized in subsection (a) of this section are
in addition to any other costs incurred or recovered by the law enforcement agency, and
payment of these costs does not in any way limit, preclude, or restrict any other right,
remedy, or action otherwise available to the law enforcement agency.
3 -14.9 Nuisance abatement
A. Pursuant to California Government Code Section 38772, any minor or
other person who creates, causes or commits a nuisance by defacing the property of
another with graffiti is liable for the cost of abatement of the nuisance caused. The City
may recover this cost by making the expense of abatement a lien against the property of
the minor or the minor's parent, in accordance with the procedures set forth in this
chapter.
1. For purposes of this section, the following definitions apply:
"Minor" or "other person" m U
p means a minor or other person who has confessed to,
admitted to, or pled guilty or nolo contendere to a violation of Section 594, 594.3, 640.5,
640.6, or 640.7 of the California Penal Code; or a minor convicted by final judgment of a
violation of Section 594, 594.3, 640.5, 640.6, or 640.7 of the California Penal 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 Section 594, 594.3,
640.5, 640.6, or 640.7 of the Penal Code.
B. Procedures.
1. To recover the expense of abatement, the City will give notice to the
minor prior to the recordation of a lien on the parcel of land owned by the minor and
notice to the parent prior to the recordation of a lien on the parcel of land owned by the
parent. This notice will be served in the same manner as a summons in a civil action
pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2
of the California Code of Civil Procedure.
2. Notice when minor or parent cannot be found.
a. If the minor, after diligent search, cannot be found, the notice may be
served by posting a copy of the notice upon the property owned by the minor, in a
conspicuous place, for a period of ten days. The notice must also be published pursuant to
Government Code Section 6062 in a newspaper of general circulation that is published in
the county in which the property is located.
b. If a minor's parent, after diligent search, cannot be found, the notice may
be served by posting a copy of the notice upon the property owned by the parent in a
conspicuous place for a period of ten days. The notice must also be published pursuant to
Government Code Section 6062 in a newspaper of general circulation that is published in
the county in which the property is located.
3. A graffiti nuisance abatement lien will be recorded in the county
recorder's office in the county in which the parcel of land is located. From the date of
recording, the lien shall have the force, effect, and priority of a judgment lien.
4. A graffiti nuisance abatement lien authorized by this section will specify
the amount of the lien; the name of the agency on whose behalf the lien is imposed; the
date of the abatement order; the street address, legal description, and assessor's parcel
number of the parcel on which the lien is imposed; and the name and address of the
recorded owner of the parcel.
5. A graffiti nuisance abatement lien may be satisfied through foreclosure in
an action brought by the City.
6. If the lien is discharged, released, or satisfied, either through payment or
foreclosure, notice of the discharge containing the information specified in subsection
(b)(4) of this section shall be recorded by the City. A graffiti nuisance abatement lien and
the release of the lien shall be indexed in the grantor- grantee index.
7. If the county recorder imposes a fee on the City to reimburse the costs of
processing and recording the lien and providing notice to the property owner, the City
may recover from the property owner any costs incurred for processing and recording of
the lien and providing notice to the property owner as part of its foreclosure action to
enforce the lien.
C. Alternative procedure for assessment. As an alternative to the lien in
subsections (a) and (b) of this section, the City may make the abatement and related
administrative costs a special assessment against a parcel of land owned by the minor or
by the parent, in accordance with the procedures set forth in Section 3 -13 of this Code.
The assessment may be collected at the same time and in the same manner as ordinary
municipal taxes are collected and are subject to the same penalties and the same
procedure and sale in case of delinquency as provided for ordinary municipal taxes. All
laws applicable to the levy, collection, and enforcement of municipal taxes shall be
applicable to the special assessment. However, if any real property to which the
abatement and related administrative costs relates has been transferred or conveyed to a
bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been
created and attaches thereon prior to the date on which the first installment of the taxes
would become delinquent, then the abatement and related administrative costs will not
result in a lien against the real property but will instead be transferred to the unsecured
roll for collection. Notices or instruments relating to the abatement proceeding or special
assessment may be recorded.
3 -14.10 Suspension or delay of driving privileges
For each conviction of a person aged thirteen (13) years or older, for violation of this
Chapter or any state law pertaining to vandalism of property with a graffiti implement,
the City shall petition the sentencing court to suspend existing driving privileges or delay
the issuance of driving privileges in accordance to California Vehicle Code Section
13202.6.
3 -14.11 Parental Responsibility
Pursuant to California Civil Code Section 1714.1(D), where graffiti is applied by a
minor, the parents or legal guardians of said minor shall be jointly and severally liable for
payment of civil damages resulting from the misconduct of the minor in an amount not to
exceed Twenty -five Thousand Dollars ($25,000.00) for each such offense.
3 -14.12 Failure to remove graffiti upon notice — Penalty
In addition to any costs incurred by the City for the abatement of graffiti from private
property, failure to voluntarily abate graffiti after notice shall result in the following
penalties:
A. The failure of any person, firm, partnership or corporation in failing to
remove graffiti within the prescribed period as set forth in this Chapter constitutes an
infraction and is punishable by a fine of One Hundred Dollars ($100.00) upon first
conviction thereof.
B. Any person, firm, partnership or corporation convicted of violating any
provisions of this Chapter for a second time shall be guilty of an infraction and shall be
punished by a fine of Two Hundred Fifty Dollars ($250.00).
C. Any person, firm, partnership or corporation convicted of violating any
provisions of this Chapter for a third time or any subsequent number of times shall be
guilty of an infraction and shall be punished by a fine of Five Hundred Dollars ($500.00).
D. Any person, firm, partnership or corporation previously convicted of
violating any provisions of this Chapter for a third time shall be deemed guilty of a
misdemeanor and upon conviction thereof shall be punished as provided in Section 3-
14.130.
3 -14.13 Penalty for Violation of Ordinance
It shall be unlawful for any person, firm, partnership or corporation to violate any
provision or fail to comply with any of the requirements of this Chapter to remove
graffiti.
A. Except as provided above, any person, firm, partnership or corporation
violating any provision of this Chapter shall be deemed guilty of a misdemeanor and
upon conviction thereof shall be punished by a fine not exceeding One Thousand Dollars
($1,000.00) or by imprisonment not exceeding six (6) months, or both such fine and
imprisonment. Each such person, firm, partnership or corporation violating any provision
of this Chapter shall be deemed guilty of a separate offense for each and every day or any
portion thereof during which any violation of this Chapter is committed, continued or
permitted by such person, firm, partnership or corporation and shall be deemed
punishable therefore as provided in the Chapter or the California Penal Code.
B. Notwithstanding the penalties set forth herein, any person who maliciously
defaces, damages or destroys property with a graffiti implement is guilty of vandalism,
pursuant to California Penal Code Section 594 and upon conviction thereof shall be
punished by imprisonment in the state prison or in the county jail for a period not to
exceed one (1) year, or by fine of Five Thousand Dollars ($5,000.00) but no more that
Fifty Thousand Dollars ($50,000.00) depending on the severity and the amount of the
defacement, damage or destruction to property or by both such fine and imprisonment.
C. The penalties set forth in this chapter are not exclusive and may be used in
addition to those set forth elsewhere in this code or by law.
3 -14.14 Community Service
A. Upon conviction of any person for violation of this Chapter or any State
law pertaining to vandalism of property with a graffiti implement, the City shall petition
the sentencing court to impose community service time, pursuant to California Penal
Code Section 640.6. The sentencing court may require the performance of community
service within the City in addition to any monetary penalties imposed. In the event the
sentencing court approves community service, the City shall request any adult or
emancipated minor convicted of vandalism, as defined by California Penal Code Section
594(a)(1) to (1) complete a minimum of 24 hours, but no more than 48 hours of
community services cleaning up, removing and repairing property damaged by graffiti for
the first conviction and (2) complete 48 hours, but no more than 96 hours of community
services cleaning up, removing and repairing property damaged by graffiti for each
subsequent conviction.
B. Any pers6n`whc is under the age of 18 when he or she violates any
provision of this Chapter or any state law pertaining to vandalism of property with a
graffiti implement and is found to be person described in California Welfare and
Institutions Code Section 602 by reason of the commission of vandalism, may be
required to perform community service time pursuant to California Welfare and
Institutions Code Section 728. For any minor found guilty of vandalism, the City shall
petition the juvenile court and the court may, in addition to any other penalties imposed
by the City, require the minor to provide the necessary labor to clean up, repair or replace
the defaced, damaged or destroyed property, or otherwise make restitution to the property
owner.
C. If a minor is personally unable to pay any fine levied for violating any
provision of this Chapter or is otherwise unable to make restitution for damages, the
minor's parent of legal guardian shall be liable for payment of the fine or restitution. If
the parent or legal guardian cannot make restitution, the sentencing court may waive
payment of the fine or community service time by the parent or legal guardian upon a
finding of good cause. If the sentencing court waives the payment of the fine by the
parent or legal guardian, the City shall petition the sentencing court, and the court at its
option, may order the parents or legal guardian to provide the necessary labor equal to the
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number of hours assigned to the minor deemed guilty of violating any provision of this
Chapter, to clean up, repair or replace property damaged by the minor.
3 -14.15 Additional remedies
The remedies set forth in this chapter are not exclusive and may be used in addition to
those set forth elsewhere in this code or by law.
3 -14.16 Violations
A violation of Section 3 -14.5 or 3 -14.6 of this chapter is a misdemeanor which is
punishable by the general penalty of Section 1 -5 of this Code.
3 -14.17 Severability
The City Council declares that, should any provision, section, paragraph, sentence or
word of this Chapter be rendered or declared invalid by any final court action, in a court
of competent jurisdiction, or by reason of any preemptive legislation, the remaining
provisions, section, paragraphs, sentences and words of this Chapter shall remain in full
force and effect.
SECTION 2. The City Clerk shall certify to the passage and adoption of this
ordinance, causing it to be posted as required by law, and it shall be effective (30) days
after its adoption.
APPROVED AND ADOPTED THIS 16thday of September , 2003.
ATTEST:
ANDREA L. HOOPER, City Clerk
APPROVED AS TO FORM:
CASSO, City Attorney
First read at a regular meeting of the City Council held on the 19th day of
August, 2003 and adopted and ordered published at a regular meeting of said
Council held on the 16th day of September, 2003.
STATE OF CALIFORNIA }
}ss
COUNTY OF LOS ANGELES }
I, the undersigned, City Clerk of the City of Lynwood, do hereby certify that the
foregoing Ordinance was passed and adopted by the City Council of the City of
Lynwood at a regular meeting held on the 1-6th day of September , 2003.
AYES:
NOES
ABSENT:
COUNCILMEN BYRD, REYES, RICHARDS. RODRIGUEZ, PEDROZA
NONE
NONE
®l }
Andrea L. Hooper, City CI re
STATE OF CALIFORNIA }
} ss
COUNTY OF LOS ANGELES }
I, the undersigned, City Clerk of the City of Lynwood, and Clerk of the City
Council of said City, do hereby certify that the above and foregoing is a full, true and
correct copy of Ordinance No. 1536 on file in my office and that said Ordinance
was adopted on the date and by the vote therein stated.
Dated this 16th
day of September , 2003.
ahz--4- / )41'0f�
Andrea L. Hooper, City Clerk