HomeMy WebLinkAbout93-14 - Adding Chapter 10.59 of the Newport Beach Municipal Code Regarding GraffitiORDINANCE NO. 93- 14
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH ADDING CHAPTER 10.59 OF THE
NEWPORT BEACH MUNICIPAL CODE REGARDING
GRAFFITI.
The City Council of the City of Newport Beach does hereby
• ordain as follows:
SECTION 1.
10.59.010 PURPOSE. The purpose of this chapter is to provide
a program for the removal of graffiti from public and private
property and to provide regulations to prevent and control the
further spread of graffiti as well as other acts of vandalism and
defacement of property in the City of Newport Beach. The City
Council finds and determines as follows:
1) The increase of graffiti, on both public and private property,
results in blight, deterioration of property values and
deprivation of the right to comfortable enjoyment of life and
property for adjacent and surrounding residents and owners.
• 2) Graffiti
is
obnoxious, constitutes a
public nuisance, and is
a threat
to
public safety which must
be abated to prevent the
further spread of graffiti.
3) Graffiti must be removed as quickly as possible to avoid or
minimize harm to persons and property in the community.
4) This ordinance is consistent with provisions of the Government
Code which authorizes the enactment of ordinances to provide
for the use of City funds to remove graffiti (Government Code
§ 53069.3) and to pay rewards (Government Code § 53069.5).
5) This ordinance is intended to be complimentary to and not in
conflict with Penal Code § 594, which provides that any person
who maliciously defaces property is guilty of vandalism, and
• § 594.1 which provides that certain activities involving the
possession, sale and use of aerosol paint containers are
misdemeanors.
10.59.020 DEFINITIONS.
(1) Graffiti: The term "graffiti" shall mean any
unauthorized inscription, word, figure, or
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design that is marked, etched, scratched,
drawn, sprayed, painted or adhered on any
surface of public or private property,
buildings, structures and places, including
but not limited to any building, wall, curb,
• sidewalk, sign, post, pole, lamppost, hydrant,
bridge, vehicle (including watercraft), tree
or other permanent surface.
(2) Aerosol Paint Container:
The term "aerosol paint container" shall mean
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 substance capable of defacing
property.
(3) Felt Tip Marker:
The term "felt tip marker" shall mean any
• marker or similar implement with a tip which
is greater than 1/8 inch, containing an ink or
other pigmented liquid.
(4) Paint Stick or Graffiti Stick:
The term "paint stick or graffiti stick" shall
mean 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 1/8 inch.
(5) Gum Label: The term "gum label" shall mean any sheet of
paper, fabric, plastic, or other substance
with an adhesive backing which is not easily
• removable when placed on a surface.
(6) Graffiti Implement:
The term "graffiti implement" shall mean an
aerosol paint container a felt tip marker, a
paint stick, gum label or etching tool capable
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of marking or scarring glass, metal, concrete
or wood.
(7) City Manager: The term "city manager" shall mean the Newport
Beach City Manager or his or her designee.
10.59.030 GRAFFITI PROHIBITION DECLARATION OF PUBLIC
isNUISANCE. It is unlawful for any person to paint, chalk, etch,
deface or otherwise apply graffiti on or to any public or privately
owned property within the City.
Graffiti that is visible from public property or private
property open to the public is declared to be a public nuisance.
10.59.040 POSSESSION OF GRAFFITI IMPLEMENT BY MINORS.
(a) It is unlawful for any person under the age of 18 years, while
upon public property, or upon private property without the
prior written consent of the owner of such property, to
possess any graffiti implement for the purpose of defacing
property.
(b) The provisions of subsection (a) shall not apply to any person
• who is traveling to or from a school in which he or she is
enrolled and attending a class for which the teacher has
required, in writing, the use of any graffiti implement.
10.59.050 SALE AND DISPLAY OF GRAFFITI IMPLEMENTS.
(a) It is unlawful for any person, firm, or corporation to sell,
exchange, give, loan or otherwise furnish any graffiti
instrument to any person under the age of 18 years. The
provisions of this section do not apply to any sale, exchange,
gift, or loan of a graffiti implement to a minor by the
minor's parent or legal guardian.
(b) Every person who owns, operates or manages a retail commercial
establishment, shall cause containers, such as aerosol paint
containers, paint sticks, felt tip markers, or marking pens to
• be stored in an area viewable by, but not accessible to, the
public. It is the intent of this section to permit, but not
to require aerosol paint containers, paint sticks, and felt
tip markers or marking pens to be visible while they are
stored or displayed pending retail sale.
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10.59.060 POSSESSION OF GRAFFITI IMPLEMENT IN PUBLIC
PLACES. It is unlawful for any person to have in his or her
possession, and in plain view any graffiti implement while in any
posted public facility, park, playground, swimming pool,
recreational area, beach, parking lot, alley, public building or
• other public right -of -way in the City of Newport Beach, unless he
or she has first received authorization from the City of Newport
Beach or other authority having jurisdiction over the public area.
10.59.070 GRAFFITI TOLERATION. Graffiti which remains
visible from public property, or private property open to the
public, for more than 48 hours is a public nuisance. The 48 hour
removal period shall commence when the owner or person in control
of the property has been notified of the existence of graffiti on
his or her property.
10.59.080 GRAFFITI REMOVAL. Whenever the city manager
makes a finding that graffiti is located on any public or privately
owned property within this city so as to be visible from any public
• property or private property open to the public in this city, and
that said graffiti is obnoxious, the city manager is authorized to
provide for the removal of the graffiti solely at the city's
expense, without reimbursement from the property owner upon whose
property the graffiti has been applied, upon the following
conditions:
1) The City shall not paint or repair a more extensive area
than is necessary to remove the graffiti;
2) Where the structure or permanent surface is owned by a
public entity other than this city, the removal of the
graffiti may be performed only after securing the consent
of the public entity having jurisdiction over the
structure or permanent surface and only after such entity
• executes an appropriate release and right of entry form
permitting such graffiti removal; and,
3) Where the structure or permanent surface is privately
owned, the removal of the graffiti by city employees or
by a private contractor under the direction of the city
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manager may be performed only after securing the consent
of the owner and only after the owner executes an
appropriate release and right of entry form permitting
such graffiti removal.
10.59.090 ABATEMENT AND COST RECOVERY PROCEEDINGS.
• In those instances when the City cannot obtain the consent of the
property owner as provided in Section 10.59.080, the city manager
shall commence the abatement procedure described herein. Upon
discovering the existence of graffiti on publicly or privately
owned property within the city and which is visible from any public
property or private property open to the public, the city manager
shall have the authority to cause the abatement and removal thereof
in accordance with the following procedure:
(a) Notice: The city manager or his /her designee shall issue
a forty -eight (48) hour written notice of intention to
abate and remove the graffiti as a public nuisance and
shall serve such notice by any of the following methods:
• (1) By personal service on the owner, occupant or
person in charge or control of the property; or,
(2) 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 shall 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 Newport
• Beach Municipal Code § 10.59.070 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
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private contractors employed by the city will enter upon
your property and abate the public nuisance by removal or
painting over the graffiti. The cost of the abatement by
the City employees or private contractors will be
assessed upon your property and such costs will
• constitute a lien upon the land until paid."
"All persons having any objection to, or interest in said
matters are hereby notified to submit any objections or
comments to the City Manager or his /her designee within
forty -eight (48) hours from receipt of this notice. At
the conclusion of this forty -eight (48) hours period,
without further notice and at your expense, the City may
proceed with the abatement of the graffiti inscribed on
your property."
(c) Appeal:
(1) Within forty -eight (48) hours of receipt of the
notice, the owner or person occupying or
• controlling such property affected may appeal the
order of abatement to the city council of the City
of Newport Beach. Appeals shall be filed with the
city clerk and shall be accompanied by a letter
stating the reasons for the appeal and a
deposit /fee as required by city council resolution.
The city council shall designate a hearing officer
to hear such appeals. An appeal shall be
accompanied by a deposit /fee as required by city
council resolution.
(2) Within fifteen (15) days of receipt of the appeal
application, the city clerk shall notify the
applicant of the date, time and location at which
• the hearing officer shall hear the appeal. The
hearing officer shall hear and pass upon the appeal
within fifteen (15) days. The decision of the
hearing officer thereupon shall be final and
conclusive.
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(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 hearing officer
declaring the graffiti to be a public nuisance, the city
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) Assessment of Costs:
(1) The person(s) who abate the nuisance under the
provision of this chapter shall keep an account of
the cost of abatement. Such person(s) shall submit
to the hearing officer for confirmation, an
itemized report showing such costs. The hearing
officer may modify the report if it is deemed
necessary and shall then confirm the report by
motion or resolution.
• (2) Pursuant to Government Code Section 38773.5, the
total cost of abatement, including all
administrative costs, shall constitute a special
assessment against that parcel. After the
assessment is made and confirmed, it shall
constitute a lien on the parcel.
(3) Such special assessment shall be collected at the
same time and in the same manner as ordinary
municipal taxes are collected and shall be subject
to the same penalties and the same procedures and
sale in case of delinquency as provided for
ordinary municipal taxes.
10.59.100 REWARD. Pursuant to Section 53069.5 of
• the California Government Code, the City may pay a reward, the
amount to be established by City Council resolution, to any person
who furnishes information leading to the identification and
apprehension of any persons convicted of willfully applying
graffiti to any surface located on private or public property.
May 3, 1993 —7—
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 purpose 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.
No law enforcement officer, municipal officer, official
•
employee of the city shall be eligible for a reward made pursuant
to this section.
10.59.110 PENALTIES FOR VIOLATIONS. Any violation of
this chapter shall be a misdemeanor offense punishable by either
six (6) months in jail, a $1000.00 fine, or both such fine and
imprisonment.
10.59.120 COMMUNITY SERVICE OPTION. As an alternative
to paying the fine for a misdemeanor or to paying any costs
assessed pursuant to the above Sections, any person may perform
community service clean up activities under the supervision of the
city manager. The number of hours of community service to be
• performed shall be determined by dividing the dollar amounts of
fines and /or costs by five dollars ($5.00).
10.59.130 RECOVERY OF COSTS.
(a) Any person convicted of applying graffiti to any wall,
structure or other permanent surface located on public or privately
owned real property within the city shall be liable to the city for
the cost of removing that same graffiti. If such person is an
unemancipated minor, his or her parent or guardian shall also be
liable to the city for the cost of removal of that same graffiti.
(b) Any person convicted of applying graffiti to any wall,
structure or other permanent surface located on public or privately
owned real property within the city shall be liable to the city for
the amount of any reward paid by the city pursuant to this Chapter.
• If such person is an unemancipated minor, his or her parent or
guardian shall also be liable for the amount of the reward.
(c) Any person owing money to the city under subsection (a)
or (b) above shall be liable in any action brought in the name of
the city for the recovery of such amount, including reasonable
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attorney's fees.
SECTION 2: The Mayor shall sign and the City Clerk shall
attest to the passage of this ordinance. The City Clerk shall
cause the same to be published once in the official newspaper of
•the City, and it shall be effective thirty (30) days after its
adoption.
is
•
SECTION 3: This ordinance was introduced at a regular
meeting of the City Council of the City of Newport Beach, held on
the 14th day of June , 1993, and adopted on the 28th day of
June , 1993, by the following vote, to wit:
AYES, COUNCILMEMBERS HEDGES, SANSONE
WATT, COX, DEBAY
NOES, COUNCILMEMBERS TURNER
ABSENT COUNCILMEMBERS HART
MAY R
wb /ordin /graffiti.ord
(alternative language)
May 3, 1993
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