(a) Following the hearing if the City sustains its burden of proof, or if the property owner and/or any Offending Party does not request a hearing and fails to remove the graffiti within 30 calendar days from the date of the notice of violation, the Director may immediately order that the graffiti be abated. Unless the Director has obtained written consent from the property owner to enter the property and remove the graffiti, before initiating abatement the Director shall obtain a court order authorizing the Department of Public Works to enter upon the property and remove the graffiti and give written notice of the abatement (Abatement Order) served in accordance with Section 2304(a). The Director may not order a graffiti abatement action that may violate the California Art Preservation Act (California Civil Code Sections 987 et seq.) or the Federal Visual Artists Rights Act of 1990 (17 U.S.C. §§ 101 et seq.) without first consulting with the City Attorney.
(b) Alternatively, the Director may provide paint for graffiti removal to a property owner at no charge. In return, the property owner shall agree in writing to paint over the graffiti giving rise to the violation within 10 City business days from receiving the paint. A property owner's failure to paint over the graffiti within that time shall be ground for the Director to issue a new notice of violation under Section 2304.
(c) If the hearing officer determines that a hardship exists, the Director is authorized to remove the graffiti at no cost to the property owner, provided that the owner releases the City from liability by providing the Director with a signed waiver of liability. The Director may develop forms for this purpose.
(d) The following procedures shall apply to actions by the Director to abate and recover costs for abatement of graffiti on private property:
(1) Abatement Action. After obtaining a court order, the Director shall implement the Abatement Order. The Director may enter upon the property and cause the removal, painting over, or other eradication of the graffiti as the Director deems appropriate. The Director shall not authorize or undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located, except where the Director determines in a written notice to the owner that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community. Where the Director removes graffiti in accordance with the requirements of this Article 23
, the owner and/or any Offending Party shall pay the greater of either $500 or the actual cost (including overhead and administrative costs, as well as attorneys' fees where the Director has elected to seek recovery of attorneys' fees) of removing the graffiti. The Director shall provide an accounting to the owner and/or any Offending Party of the costs of the abatement action (Abatement Accounting) on a full cost recovery basis not later than 10 days from the date the abatement action is completed. The Abatement Accounting shall include all administrative costs incurred by the City in abating graffiti on the property. The total amount set forth in the Abatement Accounting shall be due and payable by the owner and/or any Offending Party within 30 days from the date of mailing of the Abatement Accounting.
(2) Recovery of Attorneys' Fees. At the time the abatement action is filed, the Director may elect to seek recovery of attorneys' fees incurred in a graffiti abatement action under this Article. In a case where the Director makes this election, the prevailing party shall be entitled to recover attorneys' fees. In no event shall the award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the action.
(3) Lien. If all or any portion of the amount set forth in the Abatement Accounting remains unpaid after 30 days of the mailing of the Abatement Accounting, such portion shall constitute a proposed lien on the property which was the subject matter of the Abatement Action. Except as otherwise specified in this subparagraph, such liens shall be imposed in accordance with Chapter 10, Article XX of the Administrative Code. Property owners seeking to challenge the amount of the Abatement Accounting may do so at the hearing authorized under Chapter 10, Article XX of the Administrative Code.
(A) In addition to the requirements imposed under Section 10.232 of the Administrative Code, the notice to the property owner of the hearing on the proposed lien shall be served in the same manner as a summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the California Code of Civil Procedure. Where, after diligent search, the owner of record cannot be found, the notice may be served by posting a copy in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation.
(B) Any lien authorized by this Section shall specify the amount of the lien, the name of the department initiating the abatement proceeding, the date of the abatement order, the street address, legal description and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel.
(C) Where a lien authorized by this Section is discharged, released or satisfied, either through payment or foreclosure, the Tax Collector shall record a notice of the discharge containing the information specified in subparagraph (B). Any such notice of discharge shall be subject to the Release of Lien Fee imposed pursuant to Section 10.237 of the Administrative Code.
(4) Special Assessment. Notwithstanding anything to the contrary in Article XX of Chapter 10, pursuant to Section 38773.5 of the California Government Code, the Board of Supervisors may order that the amount of the lien be specially assessed against the parcel. Upon such an order, the entire unpaid balance of the costs, including any penalty and interest payments on the unpaid balance to the date that the Director reports to the Board shall be included in the special assessment lien against the property. The Director shall report charges against delinquent accounts to the Board of Supervisors at least once each year. At the time the special assessment is imposed, the Director shall give notice to the property owner by certified mail, and shall inform the property owner that the property may be sold by the Tax Collector for unpaid delinquent assessments after three years. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and procedure and sale in case of delinquency as provided for ordinary municipal taxes. All tax laws applicable to the levy, collection and enforcement of ordinary municipal taxes shall be applicable to the special assessment. However, if any real property to which a cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of taxes would become delinquent, then the cost of abatement shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection.
(e) Abatement in Commercial Areas: Pilot Program. Within 90 days of the effective date of the ordinance in Board File No. 220538 adding this subsection (e), the Director shall create a pilot program that allows property owners in Commercial Corridors to provide written consent authorizing Public Works to enter onto their property and remove graffiti. The scope of any graffiti abatement shall be consistent with the scope of abatement provided in subsection (d)(1). Such removal and abatement shall be offered at no cost to the property owner, provided that the owner waives any claims arising from the work, other than any claims for damages arising from negligence or non-compliance with laws. The pilot program is an alternative to the other abatement procedures in this Article 23, and a property owner may enroll in the pilot program at any time, including upon receipt of a Notice of Violation; provided, however, that a property owner who contests the Notice of Violation shall be ineligible to participate in the program. The Director is authorized to issue regulations consistent with this subsection (e).
(1) Commercial Corridors. For purposes of this subsection (e), Commercial Corridors shall include properties in the following areas: Neighborhood Commercial Districts, Named Neighborhood Commercial Districts, Neighborhood Commercial Transit Districts, and Named Neighborhood Commercial Transit Districts, listed in Section 201 of the Planning Code, and defined in Section 702 of the Planning Code; the Chinatown Community Business District, as defined in Planning Code Section 810; the Chinatown Residential/Neighborhood Commercial District, as defined in Planning Code Section 812; and the Chinatown Visitor Retail District, as defined in Planning Code Section 811.
(2) Relationship to Community Benefits Districts and Green Benefits Districts. The owner of any property located in a Community Benefits District or Green Benefits District, as defined in Articles 15 and 15A of the Business and Tax Regulations Code, must first demonstrate to the Director’s satisfaction that the relevant district lacks funding for graffiti abatement, or has exhausted all available funding for graffiti abatement, in order to participate in the pilot program established in this subsection (e).
(3) Expiration of Pilot Program. Unless the Board of Supervisors by ordinance extends the term of the Pilot Program, this subsection (e) shall expire by operation of law 27 months following the effective date of the ordinance in Board File No. 220538 establishing the Pilot Program. After that date, the City Attorney is authorized to remove this subsection (e) to be removed from the Public Works Code.
(Added as Sec. 1306 by Ord. 29-94, App. 1/14/94; amended by Ord. 263-04, File No. 041150, App. 11/4/2004; Ord. 72-14
, File No. 140261, App. 5/23/2014, Eff. 6/22/2014; redesignated and amended by Ord. 44-16
, File No. 160103, App. 4/8/2016, Eff. 5/8/2016; amended by Ord. 174-22, File No. 220538, App. 8/4/2022, Eff. 9/4/2022)