City of Monterey Park, CA GRAFFITI

Graffiti on either public or private property, results in blight, decreases property values and deprives surrounding residents and owners of the right to comfortable enjoyment of life and property.

Graffiti is obnoxious, constitutes a public nuisance, and is a threat to public safety which must be abated to prevent its proliferation.

"Aerosol paint container"

Graffiti must be removed as quickly as possible to minimize harm to persons and property in the community.

(d)

This chapter is intended to compliment, and not conflict with, Penal Code Sections 594 and 640.5— 640.8, which provide that any person who maliciously defaces property is guilty of vandalism; and Penal Code Section 594.1, which provides that certain activities involving the possession, sale and use of aerosol paint containers are misdemeanors.

(Ord. 2208 § 2, 2021)

§ 9.90.030 Definitions.

Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this chapter:

means any aerosol container which is adapted or made for the purpose of spraying paint or other substances capable of defacing property.

"Carving tool"

means any tools or instruments designed, or intended, to cut, carve or scratch into glass, metal, wood or other surfaces.

"Etching substance"

means any type of liquid or paste product used to permanently etch glass. Ingredients of etching substances may include, without limitation, ammonia/sodium bifluorides and sulfuric acid.

"Expenses"

include, without limitation, actual expenses, city administrative costs and other costs of the city of all previous code enforcement efforts, the preparation of the abatement work specifications, contracts, and staff time in inspecting the work, as well as the costs of printing, posting and mailings required by this chapter.

"Felt tip marker"

means any indelible marker or similar implement with a tip which at its broadest width is one-eighth inch or greater, containing an ink that is not water-soluble.

"Graffiti"

means any inscription, word, figure or design that is marked, etched, pasted, or otherwise placed on property without the prior approval of the property owner or person in lawful possession or control of the property.

"Graffiti implement"

means any implement capable of marking a surface to create graffiti including, without limitation, any aerosol paint container, spray actuator, paint stick, felt tip marker, marking pen, gum label, marking instrument, paint stick, drill bit, grinding stone, scribe, carving tool, etching substance or other implements capable of marking or scarring glass, metal, concrete or wood.

"Graffiti removal costs"

means all costs that would be considered abatement costs in the context of a nuisance abatement proceeding pursuant to this chapter and Chapter 4.30. In addition, such costs expressly include, without limitation, costs of removal of graffiti or other material, costs of repair and replacement of the defaced property, all city staff time, costs of the police investigation, attorney time and fees, and any court costs incurred.

"Gum label"

means any sheet of paper, fabric, plastic or other substance with an adhesive backing which, when placed on a surface, is not easily removed.

"Minor"

means, except as otherwise provided, a person under eighteen years of age.

"Paint stick"

means a device containing a solid form of paint, chalk, wax, epoxy or other similar substance capable of being applied to a surface by pressure and, upon application, leaving a mark at least one eighth of an inch in width, visible from a distance of twenty feet, and not water-soluble.

"Remove"

means to restore any surface with graffiti to substantially the same appearance it had prior to the application of the graffiti, including, without limitation, removal, covering over, or replacement, as may be necessary.

"Responsible person"

has the same meaning as in Sections 4.30.030 and 4.40.030.

"Self-service merchandising"

means open display of graffiti implements to which the public has access without the intervention of any employee.

"Spray actuator"

means an object, such as a spray tip, nozzle, or button, which is capable of being attached to an aerosol paint container for the purpose of spraying the substance contained therein.

"Vendor-assisted"

means only an employee has access to the graffiti implement and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

(Ord. 2208 § 2, 2021)

§ 9.90.040 Graffiti prohibitions.

The following is unlawful:

For any person to mark, apply, or etch graffiti on any structure located on public or private real property within the city.

For any minor to possess any graffiti implement while on public or private property without the consent of a responsible person. Any law enforcement officer who observes an apparent violation of this section may take immediate possession of the graffiti implements.

For any person to possess, other than a lawful purpose, any graffiti implement while present in or on any public facility owned by the city, including, without limitation, any road or utility infrastructure.

(d)

For any person to possess any graffiti implement for the purpose of defacing, marking, or damaging any public or private property without the express consent of the property owner or the person in lawful possession or control of the property.

(Ord. 2208 § 2, 2021)

§ 9.90.050 Accessibility to graffiti implements.

It is unlawful for any person to sell, give, or otherwise furnish any graffiti implement to any minor without the consent of the minor's parent or legal guardian. Evidence that a person, his or her employee, or agent, demanded and was shown bona fide evidence of majority and acted upon such evidence of majority in a transaction or sale is a defense to any criminal prosecution.

It is unlawful for any person to sell, permit to be sold, offer for sale, or display for sale any graffiti implement by means of self-service merchandising or by means other than vendor-assisted sales.

In addition to the sign required by Penal Code Section 594.1(c), persons selling, allowing to be sold, offering for sale, or displaying for sale any graffiti implement must post a sign with lettering at least three-eighths of an inch high which states as follows:

"WARNING: IT IS UNLAWFUL TO SELL OR DISTRIBUTE AEROSOL PAINT, PAINT STICKS OR BROAD-TIPPED MARKERS TO ANY MINOR OR FOR ANY MINOR TO POSSESS OR ATTEMPT TO PURCHASE SAME. IF YOU ARE OVER EIGHTEEN YEARS OLD, IT IS ILLEGAL FOR YOU TO PURCHASE AEROSOL PAINT, PAINT STICKS OR BROAD-TIPPED MARKERS FOR A MINOR IF YOU ARE NOT THAT PERSON'S PARENT OR GUARDIAN. VIOLATIONS ARE PUNISHABLE BY A FINE, IMPRISONMENT, OR BOTH."

(Ord. 2208 § 2, 2021)

§ 9.90.100 Abatement authority—Cost recovery.

The city manager, or designee, is authorized to abate graffiti in the manner provided in Chapter 4.30. Graffiti removal costs may be recovered in accordance with Chapter 4.30 along with any other costs authorized by that chapter.

Cost recovery may also occur pursuant to Chapter 4.40.

Any parent or other legal guardian of a minor is personally liable for any and all graffiti removal costs associated with graffiti caused by that minor. This section does not limit the amount of recovery against the parent or other legal guardian for their own common law negligence.

(Ord. 2208 § 2, 2021)

§ 9.90.110 Authorization to remove.

Graffiti located on public or private property within the city and observable from the public right-of-way, as determined by the city manager or designee, may be removed upon authorization by the city manager only upon the following conditions:

If the graffiti is located on city-owned property, the city manager, or designee, may immediately remove the graffiti by any practicable means.

If graffiti is located on property owned by a public entity other than the city, graffiti removal is authorized only after securing the consent of the public entity having jurisdiction over the property and such entity executes a release and waiver, approved as to form by the city attorney, and agrees to an assumption of costs incurred by the city for the removal of the graffiti.

If graffiti is located on private property, graffiti may be removed by the city only under the following circumstances:

(1)

After securing the consent of the owner and such owner executes a release and waiver approved as to form by the city attorney.

(2)

Complying with Section 4.30.180.

(Ord. 2208 § 2, 2021)

§ 9.90.120 Order for treble costs of abatement.

Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for a condition that may be abated in accordance with this chapter, except conditions abated pursuant to Health and Safety Code Section 17980, the court may order the owner to pay treble the costs of the abatement.

(Ord. 2208 § 2, 2021)

§ 9.90.130 Penalties for failure to remove graffiti upon notice.

In addition to any graffiti removal costs incurred by the city for the abatement of graffiti from private property, failure to voluntarily abate graffiti after notification will result in the penalties set out in this chapter.

(Ord. 2208 § 2, 2021)

§ 9.90.140 Recovery of costs from minor or parent or guardian.

If the city manager, or designee, abates graffiti in accord with this chapter, the city may recover the graffiti removal costs by making such costs a lien against the property of the minor creating, causing, or committing the nuisance. Further, such costs may be recovered against the property of the parent or guardian having custody or control of the minor up to and including the sum of twenty-five thousand dollars.

For the purposes of this section, the terms "expense of abatement," "graffiti" and "minor" have the same meaning set forth in Government Code Section 38772.

The cost recovery procedures against the property of a minor or a parent or guardian of the minor are the same as set forth in this chapter.

(d)

The graffiti removal costs are also a personal obligation of the minor and his or her parent or legal guardian.

(Ord. 2208 § 2, 2021)

§ 9.90.150 Community service.

After the conviction of any person for violation of this chapter, the city may petition the sentencing court to impose community service time, pursuant to Penal Code Section 640.6 or 1203.1. The sentencing court may require the performance of community service within the city in addition to any monetary penalties imposed.

Any minor violating any provision of this chapter or any state law pertaining to vandalism of property with a graffiti implement who is found to be a person described in Welfare and Institutions Code Section 602 by reason of the commission of vandalism, may be required to perform community service time pursuant to Welfare and Institutions Code Section 742.16. For any minor adjudicated guilty of vandalism, the city will petition the juvenile court and the court may, in addition to any other penalties imposed by the city, require the unemancipated minor to provide the necessary labor to clean up, repair, or replace defaced, damaged or destroyed property, or otherwise make restitution to the property owner.

If a minor is personally unable to pay any fine levied for violating any provision of this chapter or is otherwise unable to make restitution for damages, the minor's parent or legal guardian are liable for payment of the fine or restitution. If the parent or legal guardian cannot make restitution, the sentencing court may waive payment of the fine or community service time by the parent or legal guardian upon finding good cause. If the sentencing court waives payment of the fine by the parent or legal guardian, the city will petition the sentencing court, and the court, at the court's option, may order the parent or legal guardian to provide the necessary labor, equal to the number of hours assigned to the minor adjudicated guilty of violating any provision of this chapter, to clean up, repair, or replace property damaged by the unemancipated minor.

(Ord. 2208 § 2, 2021)

§ 9.90.160 Suspension or delay of driving privileges.

For each conviction of a person aged thirteen to twenty-one for violating this chapter, or any state law pertaining to vandalism of property with a graffiti implement, the city may petition the sentencing court to suspend driving privileges or delay the issuance of driving privileges in accordance with Vehicle Code Section 13202.6.

(Ord. 2208 § 2, 2021)

§ 9.90.170 Additional penalties.

Any person who violates any provision of this chapter for which no other penalty is otherwise provided is guilty of a misdemeanor.

Any person failing to remove graffiti within the prescribed time period is guilty of an infraction and may be punished with a fine of one hundred dollars for a first conviction, three hundred dollars for the second conviction, and five hundred dollars for each subsequent violation.

(Ord. 2208 § 2, 2021)

§ 9.90.210 Reward.

The city manager, or designee, is authorized to offer and pay a reward to any person who provides information leading to the apprehension and conviction of any person who willfully or maliciously places graffiti on any public or private property within the city. The city council will establish the maximum amount available for rewards by minute action or resolution.