HomeMy WebLinkAbout08 SECOND READING AND ADOPTION OF ORDINANCE NO. 1510DocuSign Envelope ID: 6DF2E785-1C36-43E4-8107-3423B3795F86
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AGENDA REPORT
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MEETING DATE:
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SUBJECT:
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SEPTEMBER 15, 2020
MATTHEW S. WEST, CITY MANAGER
ERICA N. YASUDA, CITY CLERK
Agenda Item
Reviewed:
City Manager
Finance Director
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Adoption of Ordinance No. 1510 amends provisions in the Tustin City Code relating to
graffiti and graffiti abatement
RECOMMENDATION: That the City Council have second reading by title only and
adoption of Ordinance No. 1510.
BACKGROUND:
On September 1, 2020, the City Council had first reading by title only of the following
Ordinance -
ORDINANCE NO. 1510
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, AN ORDINANCE
OF THE CITY COUNCIL OF THE CITY OF TUSTIN AMENDING ARTICLE 5, CHAPTER
7 OF THE TUSTIN CITY CODE PERTAINING TO GRAFFITI
Attachment:
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N/A
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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN AMENDING ARTICLE 5, CHAPTER 7 OF THE
TUSTIN CITY CODE PERTAINING TO GRAFFITI:
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. Graffiti on structures located upon public and private property is a blighting
factor which not only depreciates the value of the property, but also devalues
the adjacent and surrounding properties in the community; and
B. It is the City Council's intent to provide for the prohibition of the placement of
graffiti on structures located either on public or private property; and
C. Government Code Section 53069.3 authorizes a city to enact ordinances to
provide for the use of city funds to remove graffiti from public and privately
owned structures located within the city; and
D. The City Council finds that graffiti and related inscribed materials are
obnoxious and that Government Code Section 53069.3 authorizes that a
program be instituted allowing for the use of City funds to remove graffiti from
structures on public and private property; and
E. Government Code Section 38773.5 authorizes the City to establish a
procedure for the abatement of public nuisances within the City; and
F. Government Code Sections 38773.5 and 53069.3 each authorize the City to
establish a procedure to recover the costs of graffiti abatement performed by
the City; and
G. Government Code Section 53069.5 authorizes a city to offer and pay a reward
for information leading to the determination of the identity of, and the
apprehension of any person who willfully damages property; and
H. Certain graffiti, due to its location, message, or other features can constitute
an immediate threat to the health and safety of the community in that it may
lead to additional graffiti, criminal activity, and even violence, such that its
immediate abatement is necessary to protect the public health and welfare.
SECTION 2. Chapter 7 (Graffiti/Spray Paint Program) of Article 5 (Public Safety)
of the Tustin City Code is hereby amended and restated in its entirety to read as follows:
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CHAPTER 7
GRAFFITI/SPRAY PAINT PROGRAM
Sections:
5700 PURPOSE AND FINDINGS
5701 DEFINITIONS
5702 SALE OF SPRAY PAINT
5703 POSSESSION OF SPRAY PAINT — PROHIBITION IN PUBLIC
PLACES, PARKS AND BUILDINGS
5704 POSSESSION OF SPRAY PAINT — PROHIBITION BY MINORS IN
STREETS OR OTHER PUBLIC PLACES
5705 GRAFFITI PROHIBITTED
5706 GRAFFITI TOLERATION
5707 GRAFFITI REMOVAL
5708 GRAFFITI REWARD
5700 - PURPOSE AND FINDINGS
The purpose of this chapter is to provide a program for the elimination of graffiti from
both public and private property, to reduce blight and deterioration within the City and to
protect the public safety. The City finds and determines as follows:
(1) Graffiti on structures located upon public and private property is a blighting factor
which not only depreciates the value of the property, but also devalues the
adjacent and surrounding properties in the community; and
(2) It is the City Council's intent to provide for the prohibition of the placement of
graffiti on structures located either on public or private property; and
(3) Government Code Section 53069.3 authorizes a city to enact ordinances to
provide for the use of city funds to remove graffiti from public and privately owned
structures located within the city; and
(4) The City Council finds that graffiti and related inscribed materials are obnoxious
and that Government Code Section 53069.3 authorizes that a program be
instituted allowing for the use of City funds to remove graffiti from structures on
public and private property; and
(5) Government Code Section 38773.5 authorizes the City to establish a procedure
for the abatement of public nuisances within the City; and
(6) Government Code Sections 38773.5 and 53069.3 each authorize the City to
establish a procedure to recover the costs of graffiti abatement performed by the
City; and
(7) Government Code Section 53069.5 authorizes a city to offer and pay a reward
for information leading to the determination of the identity of, and the
apprehension of any person who willfully damages property; and
(8) Certain graffiti, due to its location, message, or other features can constitute an
immediate threat to the health and safety of the community in that it may lead to
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additional graffiti, criminal activity, and even violence, such that its immediate
abatement is necessary to protect the public health and welfare.
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[As used in this chapter the following words and terms shall have the meaning
ascribed thereto:]
"Bona fide evidence of majority" means a document issued by a federal, state,
county or municipal government or subdivision or agency thereof, including but not
limited to, a motor vehicle operator's license, a registration certificate issued under the
Federal Selective Service Act, a passport, or an identification card issued to a member
of the armed forces which identifies an individual and provides proof of the age of such
individual.
"Capable of defacing property" means any substance, spray paint, paint, or dye, or
any other liquid which when applied to any surface leaves an opaque and insoluble
residue which cannot be removed by ordinary application of soap and water.
"Graffiti" means the unauthorized inscribing, spraying of paint, or making symbols
using paint, spray paint, ink, chalk, dye or similar materials on public or private
structures, buildings or places.
"Possessor" means any property manager, tenant, sub -tenant, lessee, occupant, or
other person in lawful possession or control of property.
5702 - SALE OF SPRAY PAINT
a. Sale to Minors Prohibited. No person shall sell or cause to be sold to any person
under the age of eighteen (18) years any aerosol container of spray paint
capable of defacing property.
b. Evidence of Sale Subject to Prosecution. Evidence that a person, his or her
employee, or agent, demanded and was shown bona fide evidence of majority
and acted upon such evidence in a transaction of sale to a minor, shall be a
defense to any criminal prosecution thereof.
c. Posting of Prohibition Required. Any person who owns, manages or operates a
place of business wherein aerosol containers of spray paint capable of defacing
property are sold shall conspicuously post a copy of subsection a of this section
in such place of business in letters at least three-eighths of an inch high.
5703 - POSSESSION OF SPRAY PAINT—PROHIBITION IN PUBLIC PLACES,
PARKS AND BUILDINGS
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No person shall have in his or her possession any aerosol container of spray paint
capable of defacing property while in any public park, playground, swimming pool, or
recreation facility, public building or other public place, other than a highway, street or
alley, except authorized employees or agents of the City or persons having the
authorization of the City Manager or his designees. Nothing in this section shall be
deemed to prohibit the possession of an aerosol container of spray paint capable of
defacing property on the property of any school as defined by the Education Code, by a
teacher or authorized agent of such a school or any other person under the direct
supervision and control of a teacher of such a school.
5704 - POSSESSION OF SPRAY PAINT—PROHIBITION BY MINORS IN STREETS
OR OTHER PUBLIC PLACES
No person under the age of eighteen (18) shall have in his or her possession any
aerosol container of spray paint capable of defacing property while on any public
highway, street, alley or way unless such person is accompanied by a parent or legal
guardian.
5705 - GRAFFITI PROHIBITED
No person shall willfully or maliciously apply graffiti to, mar, or deface any public or
privately owned structures located on public or privately owned real property within the
City, whether such property is occupied, vacated or abandoned.
5706 - GRAFFITI TOLERATION
a. It shall be unlawful for the owner or possessor of any private property to permit
graffiti or other inscribed materials to remain on structures so as to be capable of
being viewed by a person utilizing any public right-of-way in the City, such as a
highway, street, road, parkway or alley, or from any public or private parking lot
or from any public common areas, providing the City has given written notice to
the owner and/or possessor requiring removal of the graffiti within a period of not
less than seventy-two (72) hours and such time period has elapsed without
remedial action. The written notice provided pursuant to this section must, in
addition to any other method of communication, be posted on the property, and
include notification that future instances of graffiti on the property that remain
unabated may result in enforcement action without further written notice.
b. In the event that an owner or possessor of property which has, within the
preceding six (6) months, been the subject of a written notice issued pursuant to
subsection (a) of this section, it shall be unlawful for the owner or possessor of
said property to allow graffiti to remain on that property for a period of seventy-
two (72) hours after the placement of the graffiti on the property. No further notice
is required by the City before enforcement action may be taken.
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5707 - GRAFFITI REMOVAL
a. Graffiti removal — Where graffiti, by virtue of its location on public or private
property, is in view of a person utilizing any public right-of-way, whether a
highway, street, road, parkway, or alley, or from any public or private parking lot
or from any public common areas, the City shall be authorized to undertake the
removal of such graffiti. Except as set forth in subsection (d) of this Section, prior
to the removal of such graffiti the City shall obtain the written consent from the
owner or possessor for such action.
b. Graffiti removal — Structures on Public Property. It shall be unlawful for the owner
of any utility box, cable box, pole, structure, or other similar appurtenances or
facilities ("structures") on any public property or public easements to permit graffiti
to remain on such structures for a period of over 48 hours when such graffiti is
capable of being viewed by a person utilizing any public right-of-way, such as a
highway, street, sidewalk, road, parkway, easement, or alley. The 48-hour period
shall commence from the time the City has given notice, written or telephonic, to
the owner and/or responsible party of such structure. If notice is provided by City
by close of business on a Friday, the removal shall occur no later than close of
business on the immediately following business day. All owners and/or managers
("responsible parties") of such structures shall provide the City with an address
and telephone number the City can use to provide such notification. If the graffiti
is not removed within the applicable timeline, the City may summarily remove the
graffiti.
c. Cost recovery and appeal — In addition to penalties provided under this Code, the
owner or possessor of the structures from which graffiti has been removed shall
reimburse the City for its cost of removal including any cost associated with
notification. The City shall provide the owner or possessor of the structure with an
invoice for the costs. If the owner or possessor of the structure desires to dispute
either the imposition or the amount of the invoice, then such owner or possessor
shall notify the Community Development Director in writing of a request for
hearing within seven (7) calendar days of the mailing of the invoice in accordance
with Section 5504. The invoice shall notify the owner or possessor of the address
at which to request an appeal and the timeframe for making a request. Failure to
request an appeal within the timeframe provided by this Section shall to waive
any right to contest the imposition or the amount of the invoice. If an appeal is
requested, a hearing shall be held in the manner set forth in Section 5504.
An appeal may be brought on the ground (1) that notice was not provided as
required by this Chapter, or (2) that the costs invoiced exceeded the actual costs
of abatement or were otherwise unreasonable, or (3) that the City was informed,
prior to the City's removal of graffiti, of extraordinary circumstances beyond the
control of the owner or possessor such as an emergency or natural disaster that
prevented timely removal of the graffiti by the owner or possessor, or (4) that the
abatement of the graffiti, or the requirement to reimburse costs for such removal
is otherwise unlawful.
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d. Summary abatement. When in the opinion of the City Manager, Chief of Police,
Director of Public Works, or the Director of Community Development, or any of
their designees, graffiti or other inscribed materials on public or private property
is of such a nature as to constitute an immediate threat to the health, safety,
and/or welfare of the public such that immediate removal of said graffiti is
necessary, the City may immediately cause said graffiti to be removed. In
determining whether graffiti or other inscribed materials constitute an immediate
threat to public health, safety, and welfare, the City Manager, Chief of Police,
Director of Public Works, the Director of Community Development, or any of their
designees, may consider, among other factors, whether the graffiti or inscribed
material has any of the following characteristics:
(1) Contains insults towards, or incites hatred or contempt of, any person or
group of persons based on race, religion, ethnicity, gender, or sexual
orientation;
(2) Refers to the name of a gang or includes words or symbols associated with
a gang or is placed in an area identified by law enforcement to be territory
claimed by a gang;
(3) Insults or threatens any identifiable individual or group;
(4) Includes obscene or indecent language or depictions;
(5) Constitutes an aesthetic blight or eyesore to a neighborhood;
(6) Tends to attract more graffiti; or
(7) Promotes criminal activity or promotes, or is likely to promote, retaliatory
action by an individual or group of individuals.
e. In the event that the City performs summary abatement of graffiti pursuant to this
Section, it shall provide the owner or possessor of the property with post-removal
notice of the abatement and an opportunity to request a hearing regarding the
summary abatement. This notice shall provide the date and nature of the graffiti
removal and advise the owner or possessor of the right to request a hearing for
the purpose of challenging whether the summary abatement of the graffiti was
unlawful for any reason. Any request for an appeal must be made within seven
(7) days of mailing of the notice. Appeals shall proceed in the same manner as
set forth in subsection (c) of this Section. Failure of any owner or possessor to file
an appeal shall constitute waiver of the right to appeal any aspect of the summary
abatement.
f. In the event that the City chooses to perform summary abatement of graffiti from
public or private property as set forth in subsection (d) of this Section, such costs
shall be borne by the City.
g. Nothing in this Chapter shall limit the right of the City to abate a graffiti nuisance
by any other lawful means.
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A reward in an amount established by resolution of the City Council may be
authorized, offered and may be paid by the City to any person who provides information
leading to the determination of the identity of, and the apprehension of, any person who
willfully or maliciously paints, marks or defaces any public or private structure located on
private or public property within the City.
The exact amount of any reward to be paid by the City shall be determined by the
City Council after receipt of a report from the City Manager indicating that information was
received leading to the determination of the identity of, and the apprehension of, a person
who willfully or maliciously painted, marred or defaced a structure located on public or
private property located within the City, and indicating the final disposition of such matter.
No law enforcement officer, municipal officer, official or employee of the City shall be
eligible for such reward.
Any person violating the provisions of Sections 5705 through 5707 of this chapter
shall pay the City the amount of any reward paid pursuant to this Section, and if such
person is an unemancipated minor, such minor's parents or guardian are so liable and
shall pay the amount of any reward to the City. Failure to pay any amount demanded by
the City pursuant to this section within thirty (30) days of written demand therefor shall
itself be a violation of the provisions of this section.
SECTION 3. CEQA. Public Resources Code § 21065 defines "project" as "an
activity which may cause either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the environment." The proposed
Ordinance does not have the potential to result in either a direct physical change in the
environment, or a reasonably foreseeable indirect physical change in the environment,
as the Ordinance does not call for any change in the existing environmental conditions
within the City. The proposed Ordinance merely revises existing law regarding the
enforcement of graffiti violations and abatement methods and does not authorize new
programs or activities. Accordingly, the Ordinance is not a "project" subject to CEQA.
(Public Resources Code § 21065; CEQA Guidelines § 15378(a).)
Even if the Ordinance could be construed to be a project subject to CEQA, the proposed
Ordinance is exempt. CEQA's Class 1 Exemption applies to the operation, repair,
maintenance, permitting, leasing, licensing, or minor alteration of existing public or private
structures, facilities, mechanical equipment, or topographical features, involving
negligible or no expansion of existing or former use at the time of the lead agency's CEQA
determination. (CEQA Guidelines, § 15301.) Because the proposed Ordinance merely
revises existing law regarding the enforcement of graffiti violations and abatement
methods and does not authorize new programs or activities, the proposed Ordinance calls
for the continued operation of existing public or private facilities involving no expansion of
the existing uses. As a result, the proposed Ordinance is exempt from CEQA pursuant to
the Class 1 exemption.
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SECTION 4. This Ordinance shall take effect the 31st day following the adoption
of this Ordinance by the City Council. Upon the effective date of this Ordinance, the
provisions hereof shall supersede any inconsistent or conflicting provisions of the Tustin
City Code.
SECTION 5. 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 section,
subsection, subdivision, sentence, clause, phrase, or portion thereof be declared invalid
or unconstitutional.
SECTION 7. The City Clerk shall certify to the adoption of this Ordinance and
cause the same to be posted at the duly designated posting places within the City and
published once within fifteen days after passage and adoption as may be required by law;
or, in the alternative, the City Clerk may cause to be published a summary of this
Ordinance and a certified copy of the text of this Ordinance shall be posted in the Office
of the City Clerk five days prior to the date of adoption of this Ordinance; and, within fifteen
days after adoption, the City Clerk shall cause to be published, the aforementioned
summary and shall post a certified copy of this Ordinance, together with the vote for and
against the same, in the Office of the City Clerk.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin
on this 15th day of September, 2020.
DR. ALLAN BERNSTEIN,
Mayor
ATTEST:
ERICA N. YASUDA,
City Clerk
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
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Erica N. Yasuda, City Clerk and ex -officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council
of the City of Tustin is five; that the above and foregoing Ordinance No. 1510 was duly
and regularly introduced and read by title only at the regular meeting of the City Council
held on the 1St day of September, 2020, and was given its second reading, passed and
adopted at a regular meeting of the City Council held on the 15th day of September, 2020,
by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
ERICA N. YASUDA,
City Clerk