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HomeMy WebLinkAboutItem 6.4 MuniCode Graffiti CITY CLERK File # D~~[Q]-~[(2] AGENDA STATEMENT CITY COUNCIL MEETING DATE: June 17, 2008 SUBJECT: ATTACHMENTS: 2. RECOMMENDATIONA/- 1. 2. ~ 3. 4. 5. FINANCIAL STATEMENT: None. DESCRIPTION: PUBLIC HEARING: Amendment of Dublin Municipal Code Chapter 5.68 (Graffiti) Report Prepared by Elizabeth H Silver, Assistant City Attorney and Stephen Muzio, Associate Attorney 1. Ordinance Amending Dublin Municipal Code Chapter 5.68 relating to Graffiti. Clean copy of ordinance. Receive Staff presentation; Open public hearing; Receive public testimony; Close public hearing and deliberate; Waive reading and INTRODUCE the Ordinance Amending Chapter 5.68 of the Dublin Municipal Code relating to Graffiti (Attachment I). At its March 22, 2006 Goals and Objectives meeting, the City Council reviewed and approved with high priority the comprehensive update to certain chapters of the Dublin Municipal Code (DMC). One chapter proposed for review is DMC Chapter 5.68, which declares graffiti a nuisance, and provides for the abatement of any graffiti which is in the public view. The Chapter requires that property owners whose property has been defaced by graffiti remove it. In the event that the owner neglects to do so, the City may abate the graffiti and seek reimbursement of its expenses from the owner. In the event that the owner fails to do so, the City has the additional remedy of imposing a special assessment on the property, which will then cause the owner to be assessed the amount owed on his or her annual property tax bill, levied by the Alameda County Auditor-Controller. In addition to a number of minor changes intended to improve the Chapter's clarity and ensure its uniformity with the rest of the DMC, staff recommends certain substantive changes be made to this Chapter to ensure the Dublin Municipal Code contains uniform procedures for the collection of costs incurred by the City in the abatement of nuisances. Attorneys' Fees_ Government Code (GC) Section 38773.5(b) states that "[i]fthe ordinance provides for the recovery of attorneys' fees, it shall provide for recovery of attorneys' fees by the prevailing party, COPY TO: Page 1 of3 b.LI- ITEM NO. rather than limiting recovery of attorneys' fees to the city if it prevails." Section 1.04.062, adopted in 1999, was drafted in accordance with the GC statute, which allows the City, at the onset of any individual action or proceeding to abate a nuisance, to determine whether it will seek attorneys' fees. However, Section 5.68.010 of this Chapter includes "attorneys' fees" in the definition of "incidental expenses." This could be understood to be inconsistent with Section 1.04.062. For this reason, we recommend deleting the reference to attorneys' fees here, and the insertion of a new section, 5.68.120, which clearly states that the recovery of attorneys' fees shall be governed by the provisions of Section 1.04.062. In the event that the City elects to do so, it would be exposed to the risk of paying attorneys' fees if it did not prevail. However, the amount of such fees may not exceed the reasonable attorneys' fees incurred by the City in that proceeding. This will allow the City to make a determination, on a case-by-case basis, to seek attorneys' fees based on an assessment of both the likelihood of success in a given proceeding. The amount of money at stake should the other party prevail would be limited by the City's own legal expenses. Assessment procedure. Cities are authorized by GC sections 38773 and 38773.5 to engage in these abatement and assessment activities. When a city levies an assessment against property, it should comply with the requirements ofGC S 38773.5. We recommend the Council amend the provisions of this chapter to incorporate proposed new section 1.04.061 which will provide uniform procedures for recovery of the City's costs of abating nuisances. Accordingly, Section 5.68.160 has been deleted and a new section inserted, which refers to the provisions of the new Section 1.04.061. As amended, the Chapter would provide that once the Council has established, by resolution, the costs to the City of abating the nuisance, the provisions in Section 1.04.061 shall take effect. This new Section describes the steps the City Administrative Services Director shall take following the resolution of the City Council. The Director will record a Notice of Lien with the County Recorder, provide notice to the property owner by certified mail, and file a certified copy of the Council's resolution confirming the costs of abatement with the County Auditor-Controller prior to August I. Section 5 .68.160(D) permits the City to forego collecting the assessment through the collection of regular property tax bills and, instead, foreclose on the property "by judicial or other sale in the manner and means provided by law." GC Section 38773.5 provides that the notice sent to the property owner "shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments." In place of the current 5.68.160(D), the provisions of proposed new Section 1.04.061(B), drafted in accordance with the Government Code, would apply. In the event that the Dublin Police Department is able to identify the person responsible for creating the graffiti, the City may utilize the procedures established in Government Code Section 38772. This statute provides that cities may seek recovery of its nuisance abatement costs from a person found to have created any such graffiti or, where that person is a minor, from that person's guardian. The proposed new Section 1.04.061 specifically provides that the City reserves the right to utilize any additional enforcement remedies available under any applicable statute as an alternative to, or in conjunction with, the remedy for special assessments contained therein. Administrative Hearing and Appeal. In order to ensure consistency with Chapter 5.64 (Property Maintenance), which contains similar administrative hearing arid appeal provisions, the sections dealing with these proceedings (Sections 5.68.130, 5.68.140 and 5.68.150) have been amended. Violations. At the request of Code Enforcement staff, Section 5.68.070 has been amended to include language. providing that, consistent with Section 36900 of the Government Code, violations of this Chapter will constitute an infraction provided, however, that any person who violates the provisions of this Chapter more than three times in a one year period may be charged with a misdemeanor. Page 2 of3 City Planning and Code Enforcement Staff have reviewed this ordinance and concur with the suggested changes. RECOMMENDATION Staff recommends that the City Council: I) receive Staff presentation; 2) open public hearing; 3) receive public testimony; 4) close public hearing and deliberate; 5) waive reading and INTRODUCE the Ordinance Amending Chapter 5.68 of the Dublin Municipal Code relating to Graffiti (Attachment I). Page 3 of3 /1/5 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN AMENDING CHAPTER 5.68 OF THE DUBLIN MUNICIPAL CODE RELATING TO GRAFFITI RECITALS WHEREAS, pursuant to California Government Code Sections 38773 and 38773.5, the City of Dublin may adopt procedures by which nuisances may be summarily abated at the expense of persons maintaining them, and by which such expenses may also be imposed as a special assessment on that parcel of land on which the nuisance is abated; and WHEREAS, the City of Dublin Municipal Code Chapter 5.68 declares graffiti to be a nuisance and provides procedures for the abatement of graffiti, secured by a special assessment on the parcel of land on which the graffiti is abated; and WHEREAS, the City Council has enacted a new Chapter 1.04.061 of the Dublin Municipal Code which establishes uniform procedures for the collection of costs incurred by the City in the abatement of nuisances; and WHEREAS, the City Council further wishes to clarify the provisions and procedures contained in the City of Dublin Municipal Code Chapter 5.68. NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows: Section 1. Chapter 5.68 of the Dublin Municipal Code is revised as follows, with deletions indicated in strikethrough and additions indicated in underline: 5.68.010 Definitions. "City" means the city of Dublin. "City Manager" means the City Manager or his/her designee(s) "Graffiti" means any inscription, word, figure, marking or design that is marked, etched, scratched, drawn or painted on any building, structure, fence. wall. automobile. fixture or other improvement, whether permanent or temporary, whether public or private, without the consent of the owner of the property or the owner's authorized agent, that is viewable from any public right- of-way, any neighboring property, or any area generally accessible to the public. "Incidental expenses" means and includes, but is not limited to, personnel costs, both direct and indirect, iB:eladiB:g attorney's fees; costs incurred in documenting the graffiti; the actual expenses and costs of the eCity in the preparation of notices, specifications and contracts, and in inspecting the work; and the costs of printing and mailing required hereunder. "7 fe.iv):tt G 14 " {/7/ 08 tv1p ATTACHMENT 1 ( ;( oj /5 "Owner" means any person owning property, as shown on the last equalized assessment roll for eCity taxes. "Person" means any individual, partnership, corporation, association or other organization, however formed. "Tenant" means any person who is not the owner, who has control or possession of property. 5.68.020 Purpose. The purpose of this chapter is to provide for the prompt abatement of graffiti from public and private properties in the eCity, and to encourage citizens to report occurrences of graffiti vandalism within the eCity. 5.68.030 Service. A. For the purposes of this chapter, service of required notices, orders, decisions and other documents shall be made in the following manner: I. By personal service; or 2. By first-class U.S. mail. postage prepaid. to the owner of the property at the address shown on the last equalized assessment roll. and to any known tenant at the address of the property. Service by mail shall be effective on the date of mailing Should no address for the owner of the property appear on the assessment roll. and should the City be unable to locate the owner to deliver the document by personal service. service may be made by posting a copy of the notice and order to abate prominently and conspicuously upon the property where the condition exists. By certified U.S. mail, return receipt requested, to the o'.vner of the property at the address shovm on the last equalized assessment roll, and to any kno';m tenant at the address of the property. Should the service by certified mail, return receipt be returned as "refused" or "ooelaimed," service may be made by posting a copy of the notice and order to abate prominently aDd conspieuously upon the property where the graffiti exists, and mailing a copy of the notice by regulcw U.S. mail to the o'.mer. B. The failure of any person to receive such notice shall not affect the validity of any proceeding. 5.68.040 Graffiti on public property-Removal required. Whenever the City Manager determines that graffiti exists upon property owned by the eCity, it shall be removed as soon as possible. When the property is owned by a public entity other than the eCity, the removal of the graffiti may be authorized by the City Manager and removal undertaken by the eCity only after securing written consent of the public entity having jurisdiction over the property. The cost, including incidental expenses, of abating graffiti shall be billed to the property owner and shall be due and payable thirty (30) days there after. 5.68.050 Graffiti on private property-Removal required-Declaration of public nuisance. A. Where graffiti exists on private property, it is the owner's duty, as well as the duty of any tenant on the property, to remove the graffiti promptly from the property and to restore the property to the condition it was in prior to such vandalism. B. Graffiti is a public nuisance. 5.68.060 Notice and order to abate graffiti. A. Upon the failure of a property owner and/or tenant to remove graffiti from his/her real or personal property, the City Manager shall serve on the owner and/or tenant a notice and order to 3~1~ abate graffiti in accordance with the provisions of Section 5.68.030. The notice and order to abate graffiti shall state: I. A description and the location of the real or personal property on which the graffiti has been placed; 2. A brief description of the unlawful graffiti that must be removed; 3. A statement that the graffiti constitutes a public nuisance; 4. A specific date by which the graffiti must be removed; 5. A statement that if the owner does not remove the graffiti within this time, the eCity may cause the graffiti to be removed and make the costs incurred in this work a personal debt of the property owner and/or tenant, or a special assessment against the property; 6. A statement that the owner and/or tenant may appeal the notice and order to abate graffiti to the City Manager, by complying with the procedures set forth in Section 5.68.1~J.O, and that if the property owner and/or tenant does not file a timely request for a hearing, he/she shall be deemed to have waived the right to any administrative hearing and appeal. B. It shall be the responsibility of the owner and/or tenant to commence removal of the graffiti described in the notice within seven (7) days of service of the notice, and to diligently and promptly pursue total removal of the graffiti. 5.68.070 Violation. A. Any person. firm. or corporation violating or causing. or permitting to be violated any of the provisions of this chapter shall be deemed guilty of an infraction. B. Any person. firm. or corporation convicted of an infraction under the provisions of this chapter shall be punishable as provided in Government Code Section 36900. Any violation beyond the third conviction within a one-year period may be charged by the District Attorney as a misdemeanor and the penalty for conviction of the same shall be a fine or imprisonment or both not to exceed the limits set forth in California Penal Code Section 19. C. Each person. firm. or corporation shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed. continued or permitted by such person and shall be punishable accordingly. D. The City Manager shall have the power to designate by written order that particular officers or employees shall be authorized to enforce particular provisions of this chapter. Officers or employees so designated shall have the authority to arrest persons who violate any of said proVIsIOns. f~y person '.'.ho shall fail to comply with a notice and order to abate graffiti \vithin the time specified in the notice, ha',ing been properly served with. a copy of the notice and order to abate graffiti shall be guilty of an infraction. The City Manager, may, hO'.'lever, in his/her discretion, elect not to treat the yiolation as an infFaetion, aDd seek entorcemem: parsaaat to any of the remedies, alone or in combination, provided in this chapter. 5.68.080 Remedy-Criminal enforcement. If the owner and/or tenant fails to correct the violation(s) within the time specified in the notice and order to abate graffiti the City Manager may request the City Attorney, or his/her designee, to prosecute the matter as a criminal offense. 5.68.090 Remedy-Abatement by the eCity. A. If graffiti is not abated as ordered within the abatement period the City Manager shall cause the same to be abated by eCity employees, or private contract. Absent consent to enter the subject property for the purpose of abatement the City Manager shall direct the City Attorney to q ~ 15' obtain the necessary judicial authority for entry and abatement purposes. The cost, including incidental expenses, of abating graffiti shall be billed to the owner and/or tenant and shall become due and payable thirty (30) days thereafter. B. A person shall not obstruct, impede, or interfere with the City Manager, or his/her representative, or with any person who owns, or holds any interest or estate in any property in the performance of any necessary act, preliminary to or incidental to, carrying out an abatement order issued pursuant to the chapter. 5.68.100 Remedy-Civillitigation. If the owner, or tenant, fails to correct the violation(s) within the time specified in the notice and order to abate graffiti the City Manager may request the City Attorney to apply to such court, or courts, as may have jurisdiction to grant such relief as will abate the public nuisance, or restrain and enjoin any person from creating, or maintaining a nuisance. 5.68.110 Alternative remedies. Nothing in this chapter shall be deemed to prevent the Council from ordering the commencement of a civil proceeding to abate graffiti pursuant to applicable law or from pursuing any other remedy available under applicable law including but not limited to abatement of the graffiti by the City at the expense of the person or persons responsible for creating the graffiti. pursuant to Government Code Section 38772. Violation of the provisions of this chapter constitutes an infraction. The City Manager is designated as the enforcement authority. 5.68.120 Attornev's fees. The rules governing the recovery of attorneys' fees for nuisance abatement actions or proceedings shall be those provided in Section 1.04.062. 5.68.~ 130 .\ppeal to City MaBager Administrative Hearine:. A. If, after receiving a notice and order to abate graffiti the owner and/or tenant believes: I. That his/her property does not contain graffiti; or that 2. Compliance with the notice and order to abate will create an undue hardship, he/she may obtain an administrative hearing before the City Manager to appealregarding the notice and order to abate graffiti by filing a written request for the hearing with the Community Development Department. B. The request shall be filed within the seven (7) days of service of the notice and order to abate graffiti and shall state: 1. The address and/or a brief description of the property; 2. The date of the notice and order to abate graffiti; 3. The grounds on which the notice and order is contested (no graffiti present, or undue hardship). C. The Community Development Department shall then set the matter for a hearing before the City Manager on a date which is no less than ten (10) calendar days and no more than thirty (30) calendar days after the receipt of the request for a hearing and shall give the property owner or other person requesting the hearing written notice of the date, time and place of the hearing through the procedures set forth in Section 5.68.030. D. Unless otherwise continued for good cause, the hearing shall be held at the date, time and place specified by the Community Development Department in the notice served on the property owner. With the consent of both parties, the appeal hearing may be conducted by telephone. At the hearing, the property owner and/or tenant shall have the right to be represented by counsel 5r;(/cf and may present relevant evidence and arguments in favor of modifying or reversing the notice and order to abate graffiti. In lieu of appearing at the hearing, the property owner and/or tenant may also submit a written statement signed under penalty of perjury which states any evidence or arguments in favor of modifying or reversing the notice and order to abate graffiti. E. In determining whether the request for waiver because of undue hardship will be granted, and subsequent assistance provided to the property owner to remove graffiti the city shall consider the following circumstances: I. The cost of restoring the property to its original state prior to the imposition of the graffiti; 2. The relative value of the property, as indicated by the most recent appraisal by the County of Alameda; 3. The ability of the owner to pay for such removal or retrofit. F. Within ten (10) days after the conclusion of the hearing, the City Manager shall issue a written decision on the notice and order to abate graffiti which shall be served in accordance with Section 5.68.030. The decision shall state the following: I. Whether the order is upheld, reversed or modified, along with specific factual findings upon which this decision is based; 2. The nature of any modifications to the order; 3. Unless the order is reversed, a specific date by which the graffiti must be removed and a brief description of the graffiti, including its location. G. The determination of the City Manager after the hearing shall be appealable only to the City Council. 5.68.H9-140 Appeal to City Council. A. The owner and/or tenant may appeal the City Manager's findings to the City Council. Any appeal to the City Council must be in writing, and must be made within fifteen (15) days from the date of service of the decision of the City Manager. The request for an appeal to the City Council shall be addressed to the City Manager and shall be deemed served only when received by the eCity. Failure to properly serve the request for appeal to the City Council within the fifteen (15) day period shall be deemed a waiver of the right to appeal the matter to the City Council and the decision of the City Manager shall become final. B. As soon as practicable after receiving the appeal. the City Clerk shall set a date for the Council to hear the appeal which date shall be not less than seven (7) calendar days nor more than thirty (30) calendar days from the date the appeal was filed. The City Clerk shall give each appellant written notice of the time and the place of the hearing at least five (5) calendar days prior to the date of the hearing. either by causing a COpy of such notice to be delivered to the appellant personally or by mailing a copy thereof. postage prepaid. addressed to the appellant at his address shown on the appeal. Upon receipt of a timely request for appeal to the City Col:lfteil, the City MaDager shall set the matter for hearing before the City COlHlcil vlitmn sixty (60) days. At the time set for the appeal hearing, the City Council shall either affirm, modify or reverse the decision of the City Manager. Continuances of the hearing may be granted by the Council on request of the owner for good cause shown. or on the Council's own motion. The decision of the City Council shall be final. 5.68.l4G-150 Procedure for hearing by City Council. A. All hearings shall be tape recorded. B. Hearings need not be conducted according to the technical rules of evidence. C. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence. but shall not be sufficient in itself to support a finding unless it would be admissible 0':(~ over obiection in civil actions in courts of competent iurisdiction in this state. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over obiection in civil actions in courts of competent iurisdiction in this state. D. Oral evidence shall be taken only on oath or affirmation. E. Irrelevant and unduly repetitious evidence shall be excluded. The procedures governing an llpfleal hecwiFlg by the City Couneil shall be the same as those pro'lided in Section 5.61.130. 5.68.~160 Record of cost of abatement. The City Manager shall keep an account of the cost, including incidental expenses, of abating on each separate lot or parcel of land where the work is done by the eCity and shall render an itemized report in writing to the City Council showing the cost of abatement or retrofitting, including the rehabilitation, demolition or repair of the property, including any salvage value relating thereto. A copy of the report and notice shall be served upon the owners of the property and/or tenants in accordance with the provisions of Section 5.68.030 at least five (5) calendar days prior to submitting the same to the City Council. Proof of the posting and service shall be made by affidavit filed with the City Clerk. The Council may make such modifications to the report as it may deem necessary. after which such report shall be confirmed by resolution. 5.68.-MO-170 Recovery of abatement expensesHA...ssessmeDt lieD. The procedures governing the recovery of the City's costs of abating graffiti shall be those provided in Section 1.04.061. '^L. The total eost f-or abating graffiti, as so confirmed by the City COlHlcil, shall constitute a speeial assessment against the respecti'/e lot or pared of land to which it relates, and upon reeordation in the offiee of the Coanty Recorder of a Notice of Lien, as so made and confirmed, shall constitute a lien on the property for the amount of secR assessmen-t. B. '^Lfter sueh eOBfirmation~ and reeordation, a certified eopy of the council's decision shall be filed '/lith the ,^Jameda County Auditor Controller on or before i\Ugust 1st of each year, whereupon it shall be the duty of the fLuditor Controller to add the amolHlts of the respective assessments to the next regular tax bills levied against the fespeetive lots and parcels of land for municipal pmposes and thereafter the amounts shall be collected at the same time and in the same manner as ordiaary mlHlieipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided f-or mdiaary ffil:Hlieipal taxes. fJllaws applieable to the levy, collection aDd enforeement of municipal taxes shall be applicable to such speeial assessmen-t. C. When the eertified copy of the City Council's decision is filed with the Aaditor Conkoller, a notice shall be sent by certified mail to the property O'.VRer stating the following: (1) that a special assessmen-t is being imposed on the property, (2) the amount of the special assessment, (3) that the speeial assessment will be collected in the same manner as the ordinary municipal taxes, and (1) that the property may be sold after tlHee years by the tax collector if the special assessment is not paid. D. In the alternative, after such recordation, such lien may be foreclosed by judicial or other sale in the mar.ner and means provided by law. 5.68.l+4J-.180 Notice of lien. Saeh- The notice of lien for recordation shall be in form substantially as follows: I t;f J( NOTICE OF LIEN (Claim of City of Dublin) Pursuant to the authority vested by the provisions of Section of Dublin Ordinance No._, the City Manager of the City of Dublin did on or about the _ day of , _, cause graffiti on the property hereinafter described to be removed in order to abate a public nuisance on said real property; and the City Council of the City of Dublin did on the _ day of , _, assess the cost of such graffiti removal upon the parcel of landreal property hereinafter described; and the same has not been paid nor any part thereof; and that said City of Dublin does hereby claim a lien on such graffiti remoyal parcel of land in the amount of said assessment, to wit: the sum of $: and the same, shall be a lien upon said real property until the same has been paid in full and discharged of record. The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Dublin, County of Alameda, State of California, and particularly described as follows: (description) Dated this _ day of -' City City of Dublin Manager Section 2. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumstances. Section 3. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this _ day of , 2008. AYES: NOES: ABSENT: ABSTAIN: 2~ fs Janet Lockhart, Mayor ATTEST: Carolyn Parkinson, Interim City Clerk 1032337.4 ORDINANCE NO. 0~J!: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********** AMENDING CHAPTER 5.68 OF THE DUBLIN MUNICIPAL CODE RELATING TO GRAFFITI RECITALS WHEREAS, pursuant to California Government Code Sections 38773 and 38773.5, the City of Dublin may adopt procedures by which nuisances may be summarily abated at the expense of persons maintaining them, and by which such expenses may also be imposed as a special assessment on that parcel of land on which the nuisance is abated; and WHEREAS, the City of Dublin Municipal Code Chapter 5.68 declares graffiti to be a nuisance and provides procedures for the abatement of graffiti, secured by a special assessment on the parcel of land on which the graffiti is abated; and WHEREAS, the City Council has enacted a new Chapter 1.04.061 of the Dublin Municipal Code which establishes uniform procedures for the collection of costs incurred by the City in the abatement of nuisances; and WHEREAS, the City Council further wishes to clarify the provisions and procedures contained in the City of Dublin Municipal Code Chapter 5.68. NOW, THEREFORE, the City Council ofthe City of Dublin does hereby ordain as follows: Section 1. Chapter 5.68 of the Dublin Municipal Code is revised as follows: 5.68.010 Definitions. "City" means the city of Dublin. "City Manager" means the City Manager or his/her designee(s) "Graffiti" means any inscription, word, figure, marking or design that is marked, etched, scratched, drawn or painted on any building, structure, fence, wall, automobile, fixture or other improvement, whether permanent or temporary, whether public or private, without the consent of the owner of the property or the owner's authorized agent, that is viewable from any public right-of-way, any neighboring property, or any area generally accessible to the public. "Incidental expenses" means and includes, but is not limited to, personnel costs, both direct and indirect; costs incurred in documenting the graffiti; the actual expenses and costs of the City in the preparation of notices, specifications and contracts, and in inspecting the work; and the costs of printing and mailing required hereunder. "Owner" means any person owning property, as shown on the last equalized assessment roll for City taxes. "Person" means any individual, partnership, corporation, association or other organization, however formed. "Tenant" means any person who is not the owner, who has control or possession of property. Page 1 of7 ATTACHMENT 2 ID ~ /<[ 5.68.020 Purpose. The purpose of this chapter is to provide for the prompt abatement of graffiti from public and private properties in the City, and to encourage citizens to report occurrences of graffiti vandalism within the City. 5.68.030 Service. A. For the purposes of this chapter, service of required notices, orders, decisions and other documents shall be made in the following manner: 1. By personal service; or 2. By first-class U.S. mail, postage prepaid, to the owner of the property at the address shown on the last equalized assessment roll, and to any known tenant at the address of the property. Service by mail shall be effective on the date of mailing Should no address for the owner of the property appear on the assessment roll, and should the City be unable to locate the owner to deliver the document by personal service, service may be made by posting a copy of the notice and order to abate prominently and conspicuously upon the property where the condition exists. B. The failure of any person to receive such notice shall not affect the validity of any proceeding. 5.68.040 Graffiti on public property-Removal required. Whenever the City Manager determines that graffiti exists upon property owned by the City, it shall be removed as soon as possible. When the property is owned by a public entity other than the City, the removal of the graffiti may be authorized by the City Manager and removal undertaken by the City only after securing written consent of the public entity having jurisdiction over the property. The cost, including incidental expenses, of abating graffiti shall be billed to the property owner and shall be due and payable thirty (30) days there after. 5.68.050 Graffiti on private property-Removal required-Declaration of public nuisance. A. Where graffiti exists on private property, it is the owner's duty, as well as the duty of any tenant on the property, to remove the graffiti promptly from the property and to restore the property to the condition it was in prior to such vandalism. B. Graffiti is a public nuisance. 5.68.060 Notice and order to abate graffiti. A. Upon the failure of a property owner and/or tenant to remove graffiti from his/her real or personal property, the City Manager shall serve on the owner and/or tenant a notice and order to abate graffiti in accordance with the provisions of Section 5.68.030. The notice and order to abate graffiti shall state: I. A description and the location of the real or personal property on which the graffiti has been placed; 2. A brief description of the unlawful graffiti that must be removed; 3. A statement that the graffiti constitutes a public nuisance; 4. A specific date by which the graffiti must be removed; Page 2 of? Ii ~ 15 5. A statement that if the owner does not remove the graffiti within this time, the City may cause the graffiti to be removed and make the costs incurred in this work a personal debt of the property owner . and/or tenant, or a special assessment against the property; 6. A statement that the owner and/or tenant may appeal the notice and order to abate graffiti to the City Manager, by complying with the procedures set forth in Section 5.68.130, and that if the property owner and/or tenant does not file a timely request for a hearing, he/she shall be deemed to have waived the right to any administrative hearing and appeal. B. It shall be the responsibility of the owner and/or tenant to commence removal of the graffiti described in the notice within seven (7) days of service of the notice, and to diligently and promptly pursue total removal of the graffiti. 5.68.070 Violation. A. Any person, firm, or corporation violating or causing, or permitting to be violated any of the provisions of this chapter shall be deemed guilty of an infraction. B. Any person, firm, or corporation convicted of an infraction under the provisions of this chapter shall be punishable as provided in Government Code Section 36900. Any violation beyond the third conviction within a one-year period may be charged by the District Attorney as a misdemeanor and the penalty for conviction of the same shall be a fine or imprisonment or both not to exceed the limits set forth in California Penal Code Section 19. C. Each person, firm, or corporation shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued or permitted by such person and shall be punishable accordingly. D. The City Manager shall have the power to designate by written order that particular officers or employees shall be authorized to enforce particular provisions of this chapter. Officers or employees so designated shall have the authority to arrest persons who violate any of said provisions. 5.68.080 Remedy-Criminal enforcement. If the owner and/or tenant fails to correct the violation(s) within the time specified in the notice and order to abate graffiti the City Manager may request the City Attorney, or his/her designee, to prosecute the matter as a criminal offense. 5.68.090 Remedy-Abatement by the City. A. If graffiti is not abated as ordered within the abatement period the City Manager shall cause the same to be abated by City employees, or private contract. Absent consent to enter the subject property for the purpose of abatement the City Manager shall direct the City Attorney to obtain the necessary judicial authority for entry and abatement purposes. The cost, including incidental expenses, of abating graffiti shall be billed to the owner and/or tenant and shall become due and payable thirty (30) days thereafter. B. A person shall not obstruct, impede, or interfere with the City Manager, or his/her representative, or with any person who owns, or holds any interest or estate in any property in the performance of any necessary act, preliminary to or incidental to, carrying out an abatement order issued pursuant to the chapter. Page 3 of7 5.68.100 Remedy-Civillitigation. 102 c;f J~ If the owner, or tenant, fails to correct the violation(s) within the time specified in the notice and order to abate graffiti the City Manager may request the City Attorney to apply to such court, or courts, as may have jurisdiction to grant such relief as will abate the public nuisance, or restrain and enjoin any person from creating, or maintaining a nuisance. 5.68.110 Alternative remedies. Nothing in this chapter shall be deemed to prevent the Council from ordering the commencement of a civil proceeding to abate graffiti pursuant to applicable law or from pursuing any other remedy available under applicable law including but not limited to abatement of the graffiti by the City at the expense of the person or persons responsible for creating the graffiti, pursuant to Government Code Section 38772. Violation of the provisions of this chapter constitutes an infraction. The City Manager is designated as the enforcement authority. 5.68.120 Attorney's fees. The rules governing the recovery of attorneys' fees for nuisance abatement actions or proceedings shall be those provided in Section 1.04.062. 5.68.130 Administrative Hearing. A. If, after receiving a notice and order to abate graffiti the owner and/or tenant believes: I. That his/her property does not contain graffiti; or that 2. Compliance with the notice and order to abate will create an undue hardship, he/she may obtain an administrative hearing before the City Manager regarding the notice and order to abate graffiti by filing a written request for the hearing with the Community Development Department. B. The request shall be filed within the seven (7) days of service of the notice and order to abate graffiti and shall state: I. The address and/or a brief description of the property; 2. The date of the notice and order to abate graffiti; 3. The grounds on which the notice and order is contested (no graffiti present, or undue hardship). C. The Community Development Department shall then set the matter for a hearing before the City Manager on a date which is no less than ten (10) calendar days and no more than thirty (30) calendar days after the receipt of the request for a hearing and shall give the property owner or other person requesting the hearing written notice of the date, time and place of the hearing through the procedures set forth in Section 5.68.030. D. Unless otherwise continued for good cause, the hearing shall be held at the date, time and place specified by the Community Development Department in the notice served on the property owner. With the consent of both parties, the appeal hearing may be conducted by telephone. At the hearing, the property owner and/or tenant shall have the right to be represented by counsel and may present relevant evidence and arguments in favor of modifying or reversing the notice and order to abate graffiti. In lieu of appearing at the hearing, the property owner and/or tenant may also submit a written statement signed Page 4 of? j J QJ; r5 .-1 under penalty of perjury which states any evidence or arguments in favor of modifying or reversing the notice and order to abate graffiti. E. In determining whether the request for waiver because of undue hardship will be granted, and subsequent assistance provided to the property owner to remove graffiti the city shall consider the following circumstances: I. The cost of restoring the property to its original state prior to the imposition of the graffiti; 2. The relative value of the property, as indicated by the most recent appraisal by the County of Alameda; 3. The ability ofthe owner to pay for such removal or retrofit. F. Within ten (10) days after the conclusion of the hearing, the City Manager shall issue a written decision on the notice and order to abate graffiti which shall be served in accordance with Section 5.68.030. The decision shall state the following: I. Whether the order is upheld, reversed or modified, along with specific factual findings upon which this decision is based; 2. The nature of any modifications to the order; 3. Unless the order is reversed, a specific date by which the graffiti must be removed and a brief description of the graffiti, including its location. G. The determination of the City Manager after the hearing shall be appealable only to the City Council. 5.68.140 Appeal to City Council. A. The owner and/or tenant may appeal the City Manager's findings to the City Council. Any appeal to the City Council must be in writing, and must be made within fifteen (15) days from the date of service of the decision of the City Manager. The request for an appeal to the City Council shall be addressed to the City Manager and shall be deemed served only when received by the City. Failure to properly serve the request for appeal to the City Council within the fifteen (15) day period shall be deemed a waiver of the right to appeal the matter to the City Council and the decision of the City Manager shall become final. B. As soon as practicable after receiving the appeal, the City Clerk shall set a date for the Council to hear the appeal which date shall be not less than seven (7) calendar days nor more than thirty (30) calendar days from the date the appeal was filed. The City Clerk shall give each appellant written notice of the time and the place of the hearing at least five (5) calendar days prior to the date of the hearing, either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at his address shown on the appeal. At the time set for the appeal hearing, the City Council shall either affirm, modify or reverse the decision of the City Manager. Continuances of the hearing may be granted by the Council on request of the owner for good cause shown, or on the Council's own motion. The decision of the City Council shall be final. 5.68.150 Procedure for hearing by City Council. A. All hearings shall be tape recorded. B. Hearings need not be conducted according to the technical rules of evidence. Page 5 of? )4 ~ IS' C. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. D. Oral evidence shall be taken only on oath or affirmation. E. Irrelevant and unduly repetitious evidence shall be excluded. 5.68.160 Record of cost of abatement. The City Manager shall keep an account of the cost, including incidental expenses, of abating on each separate lot or parcel of land where the work is done by the City and shall render an itemized report in writing to the City Council showing the cost of abatement or retrofitting, including the rehabilitation, demolition or repair of the property, including any salvage value relating thereto. A copy of the report and notice shall be served upon the owners of the property and/or tenants in accordance with the provisions of Section 5.68.030 at least five (5) calendar days prior to submitting the same to the City Council. Proof of the posting and service shall be made by affidavit filed with the City Clerk. The Council may make such modifications to the report as it may deem necessary, after which such report shall be confirmed by resolution. 5.68.170 Recovery of abatement expenses. The procedures governing the recovery of the City's costs of abating graffiti shall be those provided in Section 1.04.061. 5.68.180 Notice of lien. The notice of lien for recordation shall be in form substantially as follows: NOTICE OF LIEN (Claim of City of Dublin) Pursuant to the authority vested by the provisions of Section of Dublin Ordinance No._, the City Manager of the City of Dublin did on or about the _ day of , _, cause graffiti on the property hereinafter described to be removed in order to abate a public nuisance on said real property; and the City Council of the City of Dublin did on the _ day of , _, assess the cost of such graffiti removal upon the parcel of land hereinafter described; and the same has not been paid nor any part thereof; and that said City of Dublin does hereby claim a lien on such parcel of land in the amount of said assessment, to wit: the sum of $: and the same, shall be a lien upon said real property until the same has been paid in full and discharged of record. The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Dublin, County of Alameda, State of California, and particularly described as follows: (description) Dated this _ day of -' Page 6 of? 15~ /{ City Manager City of Dublin Section 2. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumstances. Section 3. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this _ day of ,2008. AYES: NOES: ABSENT: ABSTAIN: Janet Lockhart, Mayor ATTEST: City Clerk Page 7 of?