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HomeMy WebLinkAboutOrdinance No. 10-O3ORDINANCE NO. 10-03 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA AMENDING AND RESTATING SECTIONS 46-238 AND 46-240 OF CHAPTER 46 OF THE AZUSA MUNICIPAL CODE REGARDING RECOVERY OF COSTS FOR REMOVAL OF GRAFFITI WHEREAS, the City of Azusa spends a significant amount of public funds and other resources to remove graffiti; and WHEREAS, in March 2006, the City Council adopted Ordinance No. 06-02 which declared graffiti a public nuisance and amended Chapter 46 of the Azusa Municipal Code and to add graffiti removal tools and provide for the recovery of City funds expended on graffiti removal and abatement programs; and WHEREAS, California Civil Code section 1714.1 provides for periodic increases in the amount of damages that may be recovered from the parent of a minor whose willful misconduct results in damage to property, including placement of graffiti; and WHEREAS, since the passage of Azusa Ordinance No. 06-02, the California Judicial Council has twice increased the amount of damages that may be recovered regarding removal of graffiti, in accordance with the provisions of California Civil Code section 1714.1; and WHEREAS, to be consistent with the above described increases by the California Judicial Council, the City Council now wishes to amend Chapter 46 of the Azusa Municipal Code to increase the amount that the City may seek from parents and minors in recovering the costs for removal of graffiti; and WHEREAS, as a further deterrent the City wishes to amend the administrative penalty amounts that are applicable to violations of this Section. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Azusa as follows: SECTION 1. Section 46-238 of Division 2, Article VI, Chapter 46 of the Azusa Municipal Code is hereby amended in its entirety and restated to read as follows: "Sec. 46-238. Additional remedies; recovery from minors and parent. The following additional remedies may be pursued in addition to or as an alternative to any other remedy authorized by this Division: a. Pursuant to California Civil Code section 1714.1(b), any parent or legal guardian having custody or control of a minor who knowingly permits, or by insufficient control, allows the minor to possess a graffiti implement without supervision thereof shall be jointly and severally liable with such minor for any and all costs incurred in connection with the removal of O RANGENM MARTINEZ\65730.2 any graffiti caused by the minor, including all abatement costs, attorney's fees and court costs resulting from the civil prosecution of any claim for damages. The amount of the penalty shall not exceed thirty-seven thousand dollars ($37,000.00), pursuant to the amount set by the California Judicial Council in accordance with California Civil Code section 1714.1(c). The City, including the Azusa Police Department, shall be entitled to seek full cost recovery from the parent or legal guardian of a minor found to be guilty of violating any provision of this Division. b. Pursuant to California Penal Code Section 594, a person convicted for acts of vandalism including defacing property with graffiti may be subject to additional punishment imposed by the court. Such punishment imposed by the court may include the following: . (1) If the amount of defacement, damage or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment for up to one year, and/or by a fine of up to ten thousand dollars ($10,000). (2) If the amount of defacement, damage or destruction is less than four hundred dollars ($400), vandalism is punishable by imprisonment for up to one year, or by a fine of up to one thousand dollars ($1,000), or by both a fine and imprisonment. (3) If the amount of defacement, damage or destruction is less than four hundred dollars ($400) and the defendant has been previously convicted of vandalism or affixing graffiti, the vandalism is punishable by imprisonment or up to one year, or by a fine up to five thousand dollars ($5,000), or by both a fine and imprisonment. These remedies are in addition to any other costs incurred or recovered by the City, and payment of these costs shall not in any way limit, preclude or restrict any other right, remedy or action otherwise available to the City. C. Pursuant to California Government Code, Section 38772, the City may make the expense of the abatement of graffiti committed by minors: (1) a personal obligation of the minor causing the graffiti nuisance and a personal obligation of the parent or guardian having custody and/or control of the minor; and (2) a lien against the property of the minor or a lien against the property of the parent or guardian having custody and/or control of the minor. In accordance with California Government Code, Section 38772(c), the County probation officer shall be requested to report the names and addresses of the parent or guardian having custody and control of the responsible minor to the city clerk. (1) Should the City Manager or designee be required to abate any graffiti committed by a minor the City Manager or designee shall track and account for the abatement costs. (2) The minor or parent or guardian having custody of the minor shall then be sent a Notice of the Abatement Costs and Proposed Lien Assessment Against Property. The Notice of the Abatement Costs and Proposed Lien Assessment Against Property shall be substantially similar to the Notice of Lien shown in section 46-246. If the applicable party desires to protest the lien assessment, the party may do so by requesting an informal hearing -2- ORANG E\MMARTIN EZ\65730.2 before the City Manager, (or his/her designee), in writing within two (2) calendar days from receipt of the Notice of the Abatement Costs and Proposed Lien Assessment Against Property . The City Manager, or designee, shall then render a final decision on the assessment in writing within five (5) calendar days and mail it by first class mail to the party. The affected party shall then have five (5) calendar days to appeal the City Manager's decision to the City Council. The appeal shall be in writing. (3) The proposed lien assessment shall be calendared for approval and confirmation by the City Council, whether an appeal has been filed or not. (4) The Notice of the Abatement Costs and Proposed Lien Assessment Against Property shall be served in the same manner as a summons in a civil action in accordance with the requirements of the California Code of Civil Procedure. At a minimum, the Notice of the Abatement Costs and Proposed Lien Assessment Against Property shall be personally served on the minor and/or parent or guardian having custody and control of the minor at least seven (7) calendar days prior to the city council meeting. If after diligent search, the minor, parent or guardian, as the case may be, cannot be found, the notice may then be served by: (i) posting a copy of the notice in a conspicuous place upon the property owned by the applicable party for a period of ten (10) days; and (ii) the notice shall be published in a newspaper by the city clerk pursuant to Government Code Section 6062. Notice of the city council consideration of the proposed adoption of the assessment shall be served by first class U.S. Mail. (5) The City Council shall have the authority to adopt a resolution confirming the lien assessment, which, following adoption, shall be recorded by the city clerk in the county recorder's office in which the parcel of land is located pursuant to Government Code Section 38773.2(c). From date of recording, the lien shall have the force, effect and priority of a judgment lien. If the lien assessment is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge shall be recorded by the City. The lien assessment and the release of the lien shall be indexed in the grantor -grantee index. A nuisance abatement lien may be satisfied through foreclosure in an action brought by the City. The City may also recover from the minor, parent or guardian of the minor any costs incurred regarding the processing and recording of the lien in the event the County Recorder's Office imposes a fee upon the City for processing and recording the lien, and shall provide notice to the minor, parent or guardian of its foreclosure action to enforce the lien. (6) Pursuant to Government Code Section 38773.2(d), the resolution confirming the abatement lien shall specify the amount of the lien; the name of the agency on whose behalf the lien is imposed; the date of the abatement order; the street address, legal description, and assessor's parcel number; and the name and address of the recorded owner of the parcel. d. As an alternate lien abatement procedure to that procedure set forth in Government Code Section 38773.2, the City Council also establishes the following optional lien abatement procedure resulting in a special assessment against a parcel of land owned by a property owner upon which graffiti has been placed and not removed or a responsible party. This -3- ORANG E\M MART[N EZ\65730.2 optional lien procedure is established pursuant to Government Code Section 38773.6. To establish a lien abatement assessment against land, the same procedural steps set forth in this section shall be followed. However, the Notice of Lien Assessment shall include a statement specifying that the property may be sold after three (3) years by the tax collector for unpaid delinquent taxes. The tax collector's power of sale shall not be affected by the failure of the minor, parent or guardian to receive any notice required by this Chapter. Further, when the City uses the alternate lien abatement procedures contained in this section, attorney's fees shall be awarded to the prevailing party, but only in circumstances when the City seeks recovery of its own attorney's fees. The assessment against land shall be collected at the same time and in the same manner as municipal taxes. e. Pursuant to sections 1-24 through 1-34 of this Code, whenever a peace officer charged with the enforcement of any provision of this chapter determines that a violation of this chapter has occurred, the peace officer shall have the authority to issue an administrative citation to any person responsible for the violation, or in the case of a minor, to such minor's parent or legal guardian having custody or control of the minor. (1) Whenever a peace officer charged with the enforcement of this chapter determines that a violation of the article has occurred, the peace officer may issue an administrative citation for each violation found to have occurred. (2) Citations issued pursuant to this article shall carry administrative fines of $250, for first violation, and $500 for second and subsequent violations. (3) Violations of this chapter may also be cited as criminal misdemeanor violations in accordance with chapter 1 of this Code." SECTION 2. Section 46-240 of Division 2, Article VI, Chapter 46 of the Azusa Municipal Code is hereby amended in its entirety and restated to read as follows: "Sec. 46-240. Violation; penalties. a. Any person in violation of this article, or in the case of a minor, such minor's parent or legal guardian having custody or control of the minor, is subject to criminal citations and administrative fines and penalties as set forth in Division 2 of this Article as described in this chapter. b. In addition to the administrative and other penalties identified in this chapter, violation of any of the provisions of this chapter is a misdemeanor. Any person convicted of violation of any of the provisions of this chapter who is granted probation, and any person who is found to be a person described in California Welfare and Institutions Code Section 602 as a result of committing an offense set forth in this chapter shall, in addition to any other penalties prescribed by law, make restitution to the victim and, at the request of the city, may be required to provide community service within the city for not less than 125 hours and not more than 250 hours. -4- ORANGEVNMARTIN EZ165730.2 C. In accordance with California Vehicle Code Section 13202.6, upon the conviction of any person for the application of graffiti committed while the person was 13 years of age or older in violation of California Penal Code Section 594, the city may request the court to suspend the person's driving privilege for one year. If the person convicted does not yet have the privilege to drive, the city may request that the court order the California Department of Motor Vehicles to delay issuing the privilege to drive for one year subsequent to the time the person becomes legally eligible to drive. For each successive offense, state law requires that the court suspend the person's driving privilege for those possessing a driver's license or delay the eligibility for those not in possession of a driver's license at the time of their conviction for one additional year. C. Notwithstanding any penalty provision provided in this Code, any person violating any such provision in this chapter shall be guilty of a misdemeanor; provided, that where the city attorney or city prosecutor (or in the case of a notice to appear, the citing official) determines that such action would be in the interests of justice, the city attorney or city prosecutor may prosecute any such offense as an infraction. In the event a notice to appear is prepared as a misdemeanor, the city attorney or city prosecutor may nonetheless prosecute any such offense as an infraction. Each and every day that a violation of this chapter is committed shall be deemed a separate offense and shall be punishable as herein provided. d. Nothing in this chapter shall prevent the city initiating civil, criminal or other legal or equitable proceedings against any person violating this division as an alternative or in addition to the proceedings set forth in the administrative fine and penalty provisions of this Code." SECTION 3. If any section, subsection, paragraph, 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. SECTION 4. The City Council finds that based on the entire record before it, including all written and oral evidence presented, the City Council finds the proposed Ordinance is exempt from the requirement of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 5. The City Clerk shall certify to the passage and adoption of this ordinance, causing it to be posted as required by law, and it shall be effective (30) days after its adoption. PASSED, APPROVED and ADOPTED this 5th day of April, 2010. �i. oseph R. Rocha, Mayor -5- 0RANGE\MMARTIN EZ\65730.2 - ATTEST: Vera Mendoza, City Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS CITY OF AZUSA ) I VERA MENDOZA, City Clerk for the City of Azusa hereby certify that the forgoing Ordinance No, 10-03, was duly introduced and placed upon its first reading at a regular meeting for the City Council of the City of Azusa held on the 15a' day of March, 2010 and that thereafter, said ordinance was duly adopted and passed at a regular meeting of 5`I' day of April, 2010, by the following vote of the Council: AYES: COUNCIL MEMBERS: GONZALES, CARRILLO, MACIAS, HANKS, ROCHA NOES: COUNCIL MEMBERS: NONE ABSENT: COUNCIL MEMBERS: NONE Vera Mendoza, City Clerk APPROVED AS TO FORM: Best Best & Krieger LLP, City Attorney -6- O RAN G EBd M A RTIN EZ\65 730.2