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Purpose and Intent.
Request for Hearing; Hearing.
Abatement by Director.
Stay of Proceedings During Criminal Prosecution.
Civil Actions Against Offending Party.
Limitation of Liability.
As currently designated, the sections of this Article are numbered out of sequence with the other Articles of this Code.
As currently designated, the sections of this Article are numbered out of sequence with the other Articles of this Code.
(Former Sec. 1305 added by Ord. 29-94, App. 1/14/94; amended by Ord. 211-99, File No. 990623, App. 7/30/99; repealed by Ord. 263-04, File No. 041150, App. 11/4/2004)
This Article shall be known as the "Graffiti Removal and Abatement Ordinance."
(Added as Sec. 1300 by Ord. 29-94, App. 1/14/94; redesignated by Ord. 44-16 , File No. 160103, App. 4/8/2016, Eff. 5/8/2016)
The Board of Supervisors hereby finds and declares that:
(a) Graffiti is detrimental to the health, safety, and welfare of the community in that it promotes a perception in the community that the laws protecting public and private property can be disregarded with impunity. This perception fosters a sense of disrespect for the law that results in an increase in crime; degrades the community and leads to urban blight; is detrimental to property values, business opportunities, and the enjoyment of life; is inconsistent with the City's property maintenance goals and aesthetic standards; and results in additional graffiti and in other properties becoming the target of graffiti unless it is quickly removed from public and private property.
(b) Graffiti results in visual pollution and is hereby deemed a public nuisance. Graffiti must be abated as quickly as possible to avoid detrimental impacts on the City and its residents, and to prevent the further spread of graffiti.
(c) Graffiti is increasingly used by gangs to frighten residents of neighborhoods and instigate and escalate disputes with opposing gangs. Therefore, gang graffiti, in particular, exacerbates the degradation of San Francisco's quality of life. In order to alleviate this fear caused by gang graffiti, and to assist the partnership between the City and the neighborhoods in their mutual efforts to make streets safe, gang graffiti must be abated as quickly as possible.
(d) Graffiti also is used in guerilla marketing campaigns to promote or publicize, for commercial or non-commercial purposes, goods, products, and services in lieu of or to supplement conventional advertising techniques. This type of graffiti must be abated as quickly as possible to avoid detrimental impacts on the City and its residents, and to prevent the further spread of graffiti.
(e) It is the purpose of this Article 23 to provide a program for the removal of graffiti from walls, pavement, structures, and other improvements on both public and private property, including the public right-of-way.
(Added as Sec. 1301 by Ord. 29-94, App. 1/14/94; amended by Ord. 263-04, File No. 041150, App. 11/4/2004; redesignated and amended by Ord. 44-16 , File No. 160103, App. 4/8/2016, Eff. 5/8/2016)
For purposes of this Article 23, the following definitions shall apply:
City. "City" means the City and County of San Francisco.
Director. "Director" means the Director of the Department of Public Works or his or her designee.
Graffiti. "Graffiti" means any inscription, word, figure, marking, or design that is affixed, applied, marked, etched, scratched, drawn, or painted on any building, structure, Public Property, fixture, or other improvement, whether permanent or temporary, including by way of example only and without limitation, signs, banners, billboards, and fencing surrounding construction sites, whether public or private, without the consent of the owner of the property or the owner's authorized agent, and which is visible from the public right-of-way, or located on, in, above, or under the public right-of way. "Graffiti" shall not include: (1) any sign or banner that is authorized by, and in compliance with, the applicable requirements of this Code, the Planning Code, or the San Francisco Building Code; (2) any mural or other painting or marking on the property that is protected as a work of fine art under the California Art Preservation Act (California Civil Code Sections 987 et seq.) or as a work of visual art under the Federal Visual Artists Rights Act of 1990 (17 U.S.C. §§ 101 et seq.); (3) any painting or marking that a City department makes in the course of its official duties or as part of a public education campaign; or (4) any painting or marking required for compliance with any local, State, or federal law.
Offending Party. "Offending Party" shall mean any person or entity who defaces, damages, or destroys Public Property or private property with graffiti. "Offending Party" also shall include any person or entity who assists, enables, or permits another to deface, damage, or destroy Public Property or private property with graffiti.
Owner."Owner" shall mean the owner of record of the property as set forth in the most current records of the Tax Assessor, or the owner's authorized agent.
Public Property. "Public Property" shall mean those areas on, in, above, or under the public right-of way, including, but not limited to, sidewalks, streets, and plazas and City-owned or other public entity-owned property, buildings, and assets or public assets otherwise subject to City jurisdiction, including, but not limited to, artwork, buses and trolleys, encroachments, lampposts, manhole covers, parking meters, poles, signs and banners, street furniture, traffic control devices and boxes, transit stations, and street trees.
(a) It shall be unlawful for the owner of any real property within the City bearing graffiti to allow the graffiti to remain on the property in violation of this Article 23.
(b) It shall be unlawful for any Offending Party to deface, damage, or destroy Public Property or private property with graffiti.
(a) Notice of Violation. Where the Director determines that any property contains graffiti in violation of Section 2303, the Director may issue a notice of violation to the property owner and/or any Offending Party. At the time the notice of violation is issued, the Director shall take one or more photographs of the alleged graffiti, and shall make copies of the photographs available to the property owner and/or any Offending Party upon request. The photographs shall be dated and retained as a part of the file for the violation. The notice shall give the owner and/or any Offending Party 30 calendar days from the date of the notice to either remove the graffiti or request a hearing on the notice of violation, and shall set forth the procedure for requesting the hearing. The notice shall also inform the owner and/or any Offending Party that where the owner and/or any Offending Party fail to either remove the graffiti or request a hearing within 30 calendar days from the date of the notice, the Director may initiate proceedings in accordance with this Article 23 to enter upon the property and abate the graffiti. The notice shall inform the owner and/or any Offending Party that should the Director need to abate the graffiti, that the owner and/or any Offending Party shall be liable for all costs of enforcement and abatement. The notice shall further inform the owner and/or any Offending Party that the minimum charge for removing graffiti is the greater of either $500 or the actual cost to the City, including overhead and administrative costs, as well as attorneys' fees where the Director has elected to seek recovery of attorneys' fees. The Director shall serve the notice of violation as follows:
(1) One copy of the Notice shall be posted in a conspicuous place upon the building or property.
(2) One copy of the Notice shall be served upon each of the following:
(A) The person, if known, in real or apparent charge and control of the premises or property involved;
(B) The owner of record; and
(C) Any Offending Party.
(3) The Director may also serve one copy of the notice upon any other parties with a recorded interest.
Service required by subsections (a)(2) and (3) may be made by personal service or by certified mail.
(b) Where property defaced by graffiti is owned by a public entity other than the City, the Director shall cause removal of the graffiti only after securing the consent of an authorized representative of the public entity that has jurisdiction over the property. The Director shall use all reasonable efforts to minimize graffiti on City-owned property, but City-owned property shall not otherwise be subject to the requirements of this Article 23 except if it is associated with an Offending Party.
(c) Notwithstanding the time periods for noticing, hearings, and abatement specified in Sections 2304, 2305, and 2306, the Director, in his or her discretion, may modify such time periods if the graffiti is associated with an Offending Party to expedite such procedures, including, but not limited to, requiring the immediate abatement of graffiti, if the amount, frequency, level, type, or scope of graffiti warrants such action.
(a) Request for Hearing. A property owner and/or any Offending Party may request a hearing to contest the notice of violation issued in accordance with Section 2304 by filing with the Director within 30 calendar days from the date of the notice of violation, a request for hearing that specifies in detail the basis for contesting the notice of violation.
(b) Notice of Hearing. Whenever a hearing is requested pursuant to this Section, the Director shall, within 7 calendar days of receipt of the request, notify the property owner and/or any Offending Party of the date, time, and place of the administrative review hearing by certified mail. Such hearing shall be held no later than 45 calendar days after the Director receives the request, unless time is extended by mutual agreement of the affected parties.
(c) Submittals for the Hearing. At least 5 City business days prior to the hearing, the property owner and/or any Offending Party and the City shall submit to the hearing officer and exchange with one another, written information including, but not limited to, the following: a statement of the issues to be determined by the hearing officer, a statement of the evidence to be offered at the hearing, and the identity of any witnesses to appear at the hearing.
(d) Hearing Procedure. The hearing shall be conducted by a neutral hearing officer from a City office or department outside the Department of Public Works, appointed by the Director of Administrative Services.
(1) Hearing Request by an Owner. The burden of proof to establish that the property contains graffiti shall be on the City. The owner shall be entitled to present evidence and demonstrate that his or her property does not contain graffiti. The property owner shall also be entitled to present evidence and demonstrate that his or her property is burdened with a disproportionate share of graffiti vandalism, based on factors such as the frequency or extent of the graffiti, such that requiring the owner to remove the graffiti would result in an unfair hardship. All testimony shall be under oath, and witnesses may be cross-examined. The hearing officer shall ensure that a record of the proceedings is maintained. The determination of the hearing officer after the hearing shall be final and not appealable.
(2) Hearing Request by an Offending Party. The burden of proof to establish that the property contains graffiti and that the Offending Party defaced, damaged, or destroyed private property with graffiti or assisted another to deface, damage or destroy private property shall be on the City. The Offending Party shall be entitled to present relevant evidence. All testimony shall be under oath, and witnesses may be cross-examined. The hearing officer shall ensure that a record of the proceedings is maintained. The determination of the hearing officer after the hearing shall be final and not appealable.
(e) Decision. The hearing officer shall issue a decision including a summary of the issues and the evidence presented, and findings and conclusions, within 10 calendar days of the conclusion of the hearing. A copy of the decision shall be served upon the property owner and/or any Offending Party by certified mail. The decision shall be the City's final administrative determination. An aggrieved party may seek judicial review of the decision pursuant to California Code of Civil Procedure Sections 1094.5 and 1094.6.
(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.
In any case in which a criminal prosecution is pending or is about to be instituted for violation of Penal Code Sections 594 and 640.6, or of any other law that authorizes a court to sentence a criminal defendant to remove graffiti placed on property by that defendant, the Director may suspend abatement actions under this Article. In such a case, the abatement action shall be suspended only in connection with any property upon which the defendant is charged with placing graffiti, and only until such time as the defendant is sentenced or the case is otherwise closed. This provision shall not prohibit a property owner from removing graffiti from his or her own property during such time as the criminal proceeding is pending.
(Added as Sec. 1307 by Ord. 29-94, App. 1/14/94; amended by Ord. 263-04, File No. 041150, App. 11/4/2004; redesignated by Ord. 44-16 , File No. 160103, App. 4/8/2016, Eff. 5/8/2016)
The following procedures shall apply to actions by the City and County of San Francisco against any Offending Party to enjoin, abate, and recover costs for abatement of graffiti committed in violation of Section 2303:
(a) Graffiti on Public Property. In addition to any other remedies available at law or equity, the City Attorney is authorized to initiate a civil action for injunctive relief, civil penalties, costs, and fees as set forth below. In an action for graffiti violations on public property, any Offending Party may be enjoined, shall be liable for civil penalties of up to $1,000 per graffiti incident or other equivalent equitable or injunctive relief in the form of community or civic service, and shall be liable for any and all investigation, abatement, and litigation costs. Attorneys’ fees shall be awarded to the prevailing party in any litigation brought pursuant to this Section 2307.5(a).
(b) Graffiti on Private Property. If the City Attorney brings a civil action under Section 2307.5(a) above, the City Attorney may also, where appropriate, offer evidence that the Offending Party committed additional graffiti incidents on private property. In such a case, the City Attorney may seek additional civil penalties of up to $1,000 per private property graffiti incident or other equivalent equitable or injunctive relief in the form of community or civic service, any and all associated investigation, abatement, and litigation costs, as well as any restitution to any affected private property owners for out of pocket expenses associated with the abatement.
(a) In addition to any other remedies that may be available, a violation of this Article 23 may be punishable by an administrative fine, which may be assessed by an administrative citation issued by Public Works officials or employees designated in Section 38 of the Police Code. Administrative Code Chapter 100, "Procedures Governing the Imposition of Administrative Fines," as may be amended from time to time, is hereby incorporated and shall govern the procedure for the imposition, enforcement, collection, and administrative review of administrative citations issued to enforce this Article, except that the amount of the administrative fine shall be up to $1,000 per violation per day during the term of the violation.
(b) All monies received by the City in payment of administrative fines for violation of this Article 23 shall be deposited to the credit of Public Works to be used for the graffiti removal, abatement, education, and enforcement activities of the Department and other City departments, including the City Attorney's Office. Balances remaining from the fine collection at the close of any fiscal year shall have been deemed to have been provided for a specific purpose within the meaning of Section 9.113 of the Charter, and shall be carried forward and accumulated for the purposes recited in this subsection (b). The monies received through payment of such fines are hereby appropriated exclusively for those purposes.
(Added by Ord. 44-16 , File No. 160103, App. 4/8/2016, Eff. 5/8/2016)
By adopting this Graffiti Abatement and Removal Ordinance, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
(Added as Sec. 1308 by Ord. 29-94, App. 1/14/94; amended by Ord. 263-04, File No. 041150, App. 11/4/2004; redesignated by Ord. 44-16 , File No. 160103, App. 4/8/2016, Eff. 5/8/2016)
If any provision, subdivision, section, paragraph, phrase or clause of this Article or the application thereof is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remainder of this Article. The remainder of this Article shall remain effective and enforceable to the fullest extent allowed by law. All clauses and provisions of this Article are hereby declared to be severable.
(Added as Sec. 1309 by Ord. 29-94, App. 1/14/94; redesignated by Ord. 44-16 , File No. 160103, App. 4/8/2016, Eff. 5/8/2016)