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Ordinance No. 901ORDINANCE NO. 901 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CYPRESS, CALIFORNIA, AMENDING IN FULL ARTICLE VI. OF CHAPTER 5 OF THE CODE OF THE CITY OF CYPRESS, RELATING TO THE PREVENTION, PROHIBITION, AND REMOVAL OF GRAFFITI AND ESTABLISHING REWARD AND PENALTIES FOR ARRESTED AND CONVICTED OFFENDERS THE CITY COUNCIL OF THE CITY OF CYPRESS DOES HEREBY ORDAIN AS FOLLOWS: SECTION I. Article VI. of Chapter 5 of the Code of the City of Cypress is hereby amended in full to read as follows: "Article VI. Graffiti Prevention, Prohibition, Removal and Establishing Reward and Penalties Sec. 5 -26. Purpose and Intent. (a) The spread of Graffiti on both public and private buildings, structures, walls, fences or places causes blight within the City which results in a deterioration of property and business values for adjacent and surrounding properties, all to the immediate detriment of the City; and, (b) The power of Graffiti to create fear within the community and blight within the City is beyond the cost of cleanup or removal, but an immediate threat to the quality of life and freedom of intimidation which the residents of the City deserve; and, (c) The City Council finds and determines that Graffiti is obnoxious and a public nuisance which must be abated so as to avoid the detrimental impact of such Graffiti on the City and to prevent the further spread of Graffiti; and, (d) It is the purpose and intent of the City Council, through the adoption of this Article, to provide additional enforcement tools, in addition to those provided for under state law, to protect public and private property from acts of vandalism and defacement, including, but not limited to Graffiti on privately and publicly owned walls or fences which are inimical and destructive of the rights and values of private property owners as well as the City. CY/4043001.002 Sec. 5 -27. Definitions. (a) 'Aerosol Paint Container' means any aerosol container regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint or other substance capable of defacing property. (b) 'Felt Tip Marker' means any indelible marker or similar implement with a tip which, at its broadest width is greater than one - sixteenth (1 /16th) inch, containing an ink that is not water soluble. -1- 240 241 (c) 'Graffiti' means any unauthorized inscription, word, figure, or design that is marked, etched, scratched, drawn, or painted on any surface of any building, structure, or other facility, whether public or private and regardless of the nature of the material of any such surface. (d) 'Gum Label' means any sheet of paper, fabric, plastic or other substance with an adhesive backing which, when placed on a surface is not easily removable. (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 upon application, leaving a mark at least one - eighth (1 /8th) inch in width, visible from a distance of twenty (20) feet, and not water soluble. (f) 'Graffiti Implement' means an Aerosol Paint Container, a Felt Tip Marker, Gum Label, or a Paint Stick or any etching tool capable of scarring glass, metal, concrete or wood. Sec. 5 -28. Graffiti Prohibition. It is unlawful for any person to apply Graffiti on any publicly or privately owned buildings, permanent structures, walls, fences or places located on publicly or privately owned property within the City. Sec. 5 -29. Implement Possession By Minors. It shall be unlawful for any person under the age of eighteen (18) years to have in his or her possession any Graffiti Implement while upon public property or upon private property without the consent of the owner of such private property whose consent was given in advance and shall be as to the person's presence while in the possession of a Graffiti Implement. School Exception. The foregoing provision shall not apply while the person is attending, or travelling to or from a school at which the person is enrolled, if the person is participating in a class at said school which has, as a written requirement of said class, the need to use any Graffiti Implement. Sec. 5 -29.1. Implement Possession In Designated Public Places. No person shall have in his or her possession any Graffiti Implement while in any public park, playground, swimming pool, public recreational facility, any public right -of -way in the City, or while loitering in or near an underpass, bridge abutment, storm drain, and other similar types of infrastructure not normally used by the public, except as they may be used in planned, adult supervised activities. This Section shall not apply to authorized employees of the City of Cypress, or authorized employees of any individual, agency, or company under contract with the City. Sec. 5 -29.2. Furnishing to Minors Prohibited. It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged, given, loaned, or otherwise furnished, any Graffiti Implement to any person under the age of eighteen (18) years without the consent of the parent or other lawfully designated custodian of the person, which custodial consent shall be given in advance in writing. CY/4043001.002 -2- at Sec. 5 -29.3. Parental Civil Liability. Any parent or legal guardian whose child under the age of eighteen (18) possesses a Graffiti Implement shall be personally liable for any and all costs to any person incurred in connection with the removal of Graffiti caused by said child, or by said Graffiti Implement, and for all attorney's fees and court costs included in connection with the civil prosecution or any claim for damages. Sec. 5 -29.4. Display of Graffiti Implement. Every person who owns, conducts, operates or manages a retail commercial establishment selling Graffiti Implements, containing anything other than a solution which can be removed with water after it dries, shall store or cause such Graffiti Implements 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 Graffiti Implement. Sec. 5 -29.5. Civil Responsibility for Damages for Wrongful Display. Any person who displays a Graffiti Implement in violation of the provisions of this Article shall be personally liable for any and all costs incurred by any party, in connection with the removal of Graffiti or the repair of any Graffiti, caused by any Y property Graffiti Implement in violation of the person the California Penal Code Section 594, and for all attorney's fees and court costs incurred in connection with the civil prosecution or any claim for damages. Sec. 5 -29.6. Right of City to Require Removal - Self Removal. It is unlawful for any person who is the owner or who has primary responsibility for control of property or who has primary responsibility for the repair or maintenance of property ( "Responsible Party") to permit such property which is defaced with Graffiti to remain so defaced for a period of forty -eight (48) hours after notice by the City, unless (1) said person(s) shall demonstrate by preponderance of evidence that they do not have the financial or physical ability to remove the Graffiti; or, (2) it can be demonstrated that the 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 which case it shall be unlawful to permit such property defaced with Graffiti to remain defaced for a period of five (5) days after notice of same. Sec, 5 -29.7. Declaration of Graffiti as a Nuisance. (a) The existence of Graffiti within the City of Cypress is a public nuisance, and may be abated according to the provisions and procedures contained herein. (b) The existence of any surface of a structure, building, or other facility, whether public or private, on a parcel of land which has been defaced with Graffiti after the removal of more than five (5) times in six (6) months is a public nuisance, and may be abated by minor modifications thereto, or to the immediate area surrounding same, according to the provisions and procedures contained herein as follows: Said surface or surfaces shall be required to be retrofitted, at the cost of the property owner of said parcel, or at the cost of the City at the City's option, with such features or quality as may be established by the City as necessary to reduce the attractiveness of the surface for Graffiti, or as necessary to prevent more convenient or efficient removal thereof. CY/4043001.002 a4-P3 Sec. 5 -29.8. Removal of Graffiti. Whenever the City Manager, Police Chief, Planning Director, Public Works Director /City Engineer or their designated representatives determine that Graffiti is so located on publicly or privately owned structures, buildings, or other facilities on publicly or privately owned real property within this City so as to be capable of being viewed by a person utilizing any public right -of -way in this City, the City Manager, Police Chief, Planning Director, Public Works Director /City Engineer or their designated representative, are 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: (a) In removing the Graffiti, the painting or repair of an area more extensive than where the Graffiti is located shall not be authorized, except where the structure or property is City -owned and the City Manager, Police Chief, Planning Director, Public Works Director /City Engineer or their designated representative determines that a more extensive area is to be repainted or repaired, or where the private property owner, or other public entity owner agrees to pay for the costs of repainting or repairing a more extensive area. (b) Prior to entering upon private property or property owned by a public entity other than the City, for the purpose of removal of Graffiti, the City shall attempt to secure the consent of the property owner, and a release and waiver of the City from liability for private or public property liability damage approved as to form and substance by the City Attorney. (3) If a Responsible Party fails to remove the Graffiti within the time herein specified, or if the City shall have requested consent to remove or paint over the Graffiti and the Responsible Party shall have refused consent for entry on terms acceptable to the City consistent with the terms of this Article, the City may remove the Graffiti at the property owner's expense as a public nuisance under the following procedures: (a) Notice and Hearing. The Planning Director or designee ("Hearing Officer ") shall give not less than forty -eight (48) hours notice, served in the same manner as summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure (if the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Section 6062) to the Responsible Party who is responsible for the maintenance of a parcel of property containing Graffiti ( "Property "), and, if a different person is the owner of record of the parcel of land on which the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current, then to said owner also, of a "due process" hearing at which said Responsible Party shall be entitled to present evidence and argue that his or her Property does not contain Graffiti. The failure of any person to receive such notice shall not affect the validity of any proceeding herein. The determination of the Hearing Officer after the "due process" hearing shall be final and not appealable. If, after the due process hearing, regardless of the attendance of the Responsible Party, or his agent, the Hearing Officer determines that the Property contained Graffiti, the Hearing Officer shall give written notice CY/4043001.002 -4- ( "Eradication Order ") that, unless the Graffiti is removed within five (5) days thereafter, the City shall enter upon the Property, cause the removal, painting over (in such color as shall meet with the approval of the Public Works Director /City Engineer) or such other eradication thereof ( "Eradication Effort ") as the Public Works Director /City Engineer determines appropriate, and shall provide the Responsible Party thereafter with an accounting of the costs of such Eradication Effort, including incidental expenses. The term "incidental expenses" includes but is not limited to the actual expenses and costs of the City in preparation of notices and contracts, inspection of the work, and the cost of printings and mailings required under this Article, and any attorney's fees expended in the eradication of the Graffiti, through civil action or otherwise. The City Attorney shall keep an accounting of attorney's fees and costs and transmit the same to the Planning Director or designee. (b) Eradication Effort. Not sooner than the time specified in the Order of the Hearing Officer, the Planning Director or designee, shall implement the Eradication Order, and shall provide an accounting to the Responsible Party of the costs thereof ( "Eradication Accounting "). (c) Cost Hearing. If the Responsible Party fails to request a hearing before the Hearing Officer in the Eradication Accounting ( "Cost Hearing "), or if requested, and a Cost Hearing is conducted after extending due process to the Responsible Party, and after such a Cost Hearing, the Hearing Officer determines that all or a portion of the costs are appropriately chargeable to the Eradication Effort, the total amount set forth in the Eradication Accounting, or such amount thereof determined as appropriate by the Hearing Officer, (Assessed Eradication Charges ") shall be due and payable by the Responsible Party within thirty (30) days. (d) Lien. If all or any portion of the Assessed Eradication Charges remain unpaid after thirty (30) days, pursuant to the authority created by law, including Government Codes Section 38773, et seq., such portion thereof as shall remain unpaid shall constitute and is hereby declared to constitute a lien on the Property which was the subject matter of the Eradication Effort. The Public Works Director /City Engineer shall present a Resolution of Lien to the City Council, and upon passage and adoption thereof, shall cause a certified copy thereof to be recorded with the Orange County Recorder's Office. (e) Additional Remedies. Nothing in this Article shall preclude the abatement of Graffiti by the City through civil process by means of restraining order, preliminary or permanent injunction or in any other manner provided by law for the abatement of such public nuisance. Sec. 5 -29.9. Condition Encroachment Permits. All encroachment permits issued by the City shall be conditioned upon the following: (1) the permittee shall apply an anti - graffiti material to the encroaching object of a type and nature that is acceptable to the Public Works Director /City Engineer; (2) the immediate removal by the permittee of any Graffiti; (3) the right of the City to remove Graffiti or to paint the encroaching object; (4) providing City with sufficient matching paint and /or anti - graffiti material on demand for use in the painting of the encroaching object containing Graffiti. CY/4043001.002 -5- 245 Sec. 5- 29.10. Condition Tentative Maps. In approving tentative or parcel maps, conditional use permits, variances, or other similar land use entitlements, the City may consider imposing any or all of the following conditions: (a) Use of Anti - Graffiti Material. Developer shall apply an anti - graffiti material of a type and nature that is acceptable to the Public Works Director /City Engineer to each of the publicly - viewable surfaces on the improvements to be constructed on the site deemed by the Public Works Director /City Engineer to be likely to attract Graffiti ( "Graffiti Attracting Surfaces "); and, (b) Right of Access to Remove Graffiti. Developer shall grant, prior to resale of any of the parcels which are within the territory of said map, the right of entry over and access to such parcels, upon forty -eight (48) hours posting of notice, by authorized City employees or agents, to the City for the purpose of removing or "painting over" Graffiti from Graffiti Attracting Surfaces previously designated by the Public Works Director /City Engineer, and the right to remove such Graffiti; and, (c) Supply With Graffiti - Removal Material. Developer shall, for a period of two (2) years after the resale of their final lot, provide the City with sufficient matching paint and /or anti - graffiti material on demand for use in the painting over or removal of designated Graffiti Attracting Surfaces; and, (d) Owner to Immediately Remove Graffiti. Developer shall, either as part of the Conditions, Covenants and Restrictions, or as separate covenants recorded against individual lots, prior to resale of same, covenant, which covenant shall run with the land and be for the benefit of the City, in a form satisfactory to the City, that the owner of the lots shall immediately remove any Graffiti placed thereon. Sec. 5- 29.11. Reward. Pursuant to Government Code Section 53069.5, the City Council may, by resolution, establish a reward for information leading to the identification and arrest and conviction of any person who places Graffiti upon any public or private property in the City. In the event of damage to any such property, said resolution may require that the convicted offender reimburse the City for any reward paid, and may place responsibility for reimbursement of such reward upon the parent(s) or legal guardian(s) of any unemancipated minor so convicted. Sec. 5- 29.12. Violations. In addition to all other penalties under state law which may be applicable, any violation of this Article shall be a misdemeanor offense punishable by either six (6) months in jail, a one - thousand dollar ($1,000.00) fine, or both such fine and imprisonment." SECTION II. If any section, subsection, subdivision, 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 hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases or portions thereof be declared invalid or unconstitutional. CY/4043001.002 -6- SECTION III. The City Clerk is hereby authorized and directed to certify as to the passage of this Ordinance and to give notice thereof by causing copies of this Ordinance to be posted in three public places throughout the City. FIRST READ at a regular meeting of the City Council of said City held on the 23rd day of August , 1993 and finally adopted and ordered posted at a regular meeting held on the 13th day of September , 1993. MAYOR OF THE CITY O ESS ATTEST: CITY CLERK OF THE ITY OF CYPRESS STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF CYPRESS I, DARRELL ESSEX, City Clerk California DO HEREBY CERTIFY that the adopted at a regular meeting of the Cypress, held on the 13th day of following roll call vote: AYES: 5 COUNCILMEMBERS: NOES: 0 COUNCILMEMBERS: of the City of Cypress, foregoing Ordinance was duly City Council of the City of September , 1993, by the Age, Bowman, Nicholson, Partin and Kerry None ABSTAINED: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None CY/4043001.002 74„, CITSC CLE1 K OF THE CITY OF CYPRESS -7- 246