Ord 590 ORDINANCE NO. 590
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA AMENDING
CHAPTER 9.56 OF THE POWAY MUNICIPAL CODE
PERTAINING TO GRAFFITI
WHEREAS, the City of Poway finds and determines that graffiti is
obnoxious and constitutes a public nuisance, and must be abated to avoid the
detrimental impact of such graff~ti on the City and its residents and prevent
further spreading of graffiti; and
WHEREAS, graffiti is not art; it is vandalism. It is costly, destructive and
lowers property value; and
WHEREAS, cities, public agencies, utility companies, and private property
owners throughout San Diego County spend monies and resources to combat
graffiti vandalism; and
WHEREAS, etching cream or liquid is now being used by vandals as a tool
for their graffiti.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY
DOES ORDAIN AS FOLLOWS:
Section 1. Chapter 9.56 of the Poway Municipal Code is hereby
amended to read as follows:
Chapter 9.56 Graffiti
Sections:
9.56.010 Definitions
9.56.020 Prohibitions
9.56.030 Graffiti Removal
9.56.040 Expenditures of Public Funds
9.56.050 Provisions Nonexclusive
9.56.060 Severability
9.56.070 Penalty for Violation
9.56.080 Liability of Parent or Guardian
9.56.090 Penalty for Etching
9.56.010 Definitions.
A. "Graffiti" means any paint, chalk, drawing, inscription, scratching,
scrawling, etching or other marking by any person on any wall, fence, stucco,
plaster or other surface not his or her own, or, done without the permission of the
property owner, whether public or private, and written or drawn so as to be
capable of being viewed by any person utilizing any public right-of-way in the
City, such as road, parkway, or alley.
Ordinance No. 590
Page 2
B. "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.
C. "Felt tip marker" means any indelible marker or similar implement
with a tip, which at its broadest width is greater than one-eighth inch, containing
an ink that is not water-soluble.
D. "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 one-eighth of
an inch in width, visible from a distance of twenty feet, and not water-soluble.
E. "Graffiti implement" means an aerosol paint container, a felt tip
marker, a graffiti stick or a glass-etching tool, including glass-etching creams.
9.56.020 Prohibitions.
A. Graffiti Prohibited. It is unlawful for any person to paint, inscribe,
mark or otherwise apply graffiti on any public or private property in the City.
B. Removal Required. It is unlawful for the owner of any private
commercial, manufacturing or multifamily residential property to permit graffiti to
remain in a manner visible to persons using any public rights-of-way in the City,
provided the City has given the owner a written notice to remove the graffiti within
ten days and said period has elapsed. Further, such graffiti is declared to be a
public nuisance subject to abatement in accordance with Chapter 8.72 of this
code. The written notice required by this section shall be served personally or by
certified mail return receipt requested upon the owner of record of the property or
upon the agent for service of process of the owner of the property.
C. Possession by Minors. It shall be unlawful for any person under the
age of eighteen years to have in his or her possession any graffiti implements
while upon public property, or upon private property without the consent of the
owner of such private property given in advance, and such consent as to the
person's presence shall have been given while such person was in the
possession of a graffiti implement. The foregoing provision shall not apply while
the person is attending, or traveling 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 requirement to use felt tip markers.
D. 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, recreational facility (other than a highway, street, alley or way),
except as may be authorized by the City.
Ordinance No. 590
Page 3
E. Wrongful Display or Storage. No person, firm or entity engaged in
a commercial enterprise shall store or display for sale, trade or exchange any
graffiti implement except in an enclosed area behind a sales or service counter
from which the public is precluded from entry, or in a completely enclosed and
locked storage device.
9.56.030 Graffiti Removal.
Whenever the City Manager determines that graffiti is located on public or
private property within the City in a manner visible to persons using any public
rights-of-way, the City Manager is authorized to provide for the removal of the
graffiti or, at the Manager's discretion, furnish or otherwise provide the owner
with materials necessary to accomplish such removal as hereinafter set forth.
A. Where a structure is owned by a ~ublic entity other than the City,
the removal of the graffiti may be authorized onl after securing the consent,
release, and waiver of the public entity having urisdiction over the structure, in
the form of a fully executed Graffiti Form, or otherwise.
B. Where structure is privately owned the removal of the graffiti may
be authorized only after securing the consenl release, and waiver of the owners,
in the form of a fully executed Graffiti Removal Authorization Form, or otherwise.
C. Whenever the City determines that graffiti exists and the owner of
such property has returned the executed consent form to the City, the City shall
be authorized to provide for the removal of the graffiti. The City shall not
authorize nor undertake to provide for the painting or repair of any more
extensive area than that where the graffiti is located.
9.56.040 Expenditures of Public Funds.
The City is authorized to expend City funds to remove graffiti from public or
privately owned structures located on public or privately owned real property
within the City. Such expenditures shall be limited to the removal of graffiti and
not the painting or repair of a more extensive area. Expenditure of City funds to
remove graffiti from private property shall be conditioned on the consent of the
private property owner to pay the actual, reasonable cost of removal.
9.56.050 Provisions Nonexclusive.
Any provision of this chapter notwithstanding, any act deemed unlawful
hereunder may also be punishable under any other appropriate law of the State
of California or ordinance of the City.
Ordinance No. 590
Page 4
9.56.060 Severability.
If any section, subsection, sentence, clause, phrase or portion of this
chapter 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 chapter. The City Council declares that it would
have adopted each section, subsection, sentence, clause, phrase or portion
thereof, irrespective of the fact that any one or more sections, subsections,
clauses, phrases or portions be declared invalid or unconstitutional.
9.56.070 Penalty for Violation.
A. Any person, firm, or corporation violating any of the provisions of
this chapter shall be subject to the provisions of Chapters 1.08 and 1.12 of this
code.
B. In lieu of, or as part of, requesting prosecution of a petition to
declare a minor to be a ward of the court under Welfare and Institutions Code
Section 602, or in lieu of prosecuting a violation of this chapter as a crime against
an adult, the City Attorney, upon the recommendation of the City Manager, shall
be authorized to offer the minor or adult an option to perform such community
service as the City Attorney deems appropriate, but which community service
shall, if offered at all, contain the following minimum elements:
1. The minor or adult shall perform community service of a number of
hours approximately equal to the cost of repair of damage caused, divided by the
minimum wage, but in no event less than thirty hours.
2. At least one of the custodial parents, or if none, guardians, shall be
in attendance at least fifty percent of the period of assigned community service.
3. The entire period of community service shall be performed under
the supervision of a community service provider approved by the City Manager.
4. Reasonable effort shall be made to assign the subject minor or
adult to a type of community service that is reasonably expected to have the
most rehabilitative effect on the minor or adult. To the extent that the offense
giving rise to the offer of community service constitutes a violation of this chapter,
reasonable effort shall be made by the City Manager to assign the minor to
community service, which constitutes in significant part the removal of graffiti.
9.56.080 Liability of Parent or Guardian.
Any violation by a minor of Section 9.56.020(A) which results in damage to
property, not in excess of twenty-five thousand dollars, shall cause the parent or
guardian, having custody and control of the minor, to be jointly and severely
liable with the minor for any damages resulting from the willful misconduct.
Ordinance No. 590
Page 5
The City Manager shall have the authority to seek reimbursement for victims of
unauthorized graffiti placement pursuant to Civil Code Section 1714.1.
9.56.090 Penalty for Etching.
Notwithstanding any other provision of this code to the contrary, the
violation of Section 9.56.020(A) by etching shall be prosecuted as a
misdemeanor, and punished by a fine of at least five hundred dollars and
imprisonment in County jail, or detention at Juvenile Hall, of at least two days.
EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty
(30) days after the date of this passage; and before the expiration of fifteen (15)
days after its passage, it shall be published once with the names and members
voting for and against the same in the Poway News Chieftain, a newspaper of
general circulation published in the City of Poway.
Introduced and first read at a regular meeting of the City Council of the
City of Poway, held this 21st day of October, 2003, and thereafter PASSED AND
ADOPTED at a regular meeting of said City Council held the 4th day of November
2003, by the following roll call vote.
AYES: EMERY, GOLDBY, HIGGINSON, REXFORD, CAFAGNA
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE r~
Michael P. Cafa~ ~yor
ATTEST:
Lort,~nne P6oples, (~ity~(~erk