El Monte Municipal Code Ch. 9.08 Graffiti Prevention, Prohibition and Removal

A. The purpose of this section is to help prevent the spread of graffiti and to establish a program for its removal from city-owned property and non-city owned property within the city of El Monte.

B. California Government Code Section 53069.3 authorizes the city, under certain circumstances, to provide for the removal of graffiti and other inscribed material from private as well as public property. The City Council finds and determines that graffiti is obnoxious and a public nuisance and unless the city causes it to be removed from city-owned and non-city owned property within the city of El Monte, it tends to remain. Other properties then become the target of graffiti with the result that entire neighborhoods are affected and become less desirable places in which to be, all to the detriment of the city.

C. It is the purpose of the City Council of the city of El Monte, through the adoption of this chapter, to provide additional enforcement tools to protect public and private property from acts of vandalism and defacement, including the application of graffiti on walls, natural objects and structures. Such acts are destructive of the rights and values of property owners as well as the entire community.

(Ord. 2563 § 2 (part), 2002)

"Aerosol paint container" means any aerosol container that is adapted or made for the purpose of applying spray paint, or other substance capable of defacing property.

"Felt-tip marker" means any indelible marker or similar implement with a tip which, at its broadest width is greater than one-eight of an inch, containing ink or other pigmented liquid which is not water soluble.

"Graffiti" means any unauthorized inscription, word, figure, painting or other defacement that is written, marked, etched, scratched, sprayed, drawn, painted, or engraved on or otherwise affixed to or on any surface of city-owned property or non-city owned property within the city of El Monte by or with, but not limited to, any of the following: felt-tip marker, paint stick or graffiti stick, or graffiti implement, to the extent that the same was not authorized in advance by the owner or occupant thereof, or despite advance authorization, is otherwise deemed by the City Council to be a public nuisance.

"Graffiti implement" means an aerosol paint container, a felt tip marker, gum label, paint stick or graffiti stick, etching tool including but not limited to etching creams and substances, or any other device capable of scarring or leaving a visible mark on glass, metal, concrete or wood or any other surface.

"Paint stick" or "graffiti stick" means any 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, of leaving a mark at least one-eighth of an inch in width.

"Responsible party," means any person who is the owner, or who has primary responsibility for repair or maintenance of property in the city of El Monte.

"Structure" as used in this chapter means any trees, or edifice including, but not limited to buildings, walls, fences, poles and signs.

(Ord. 2563 § 2 (part), 2002)

A. It is unlawful for any person to apply graffiti to any structure on any city-owned property, or on any non-city owned property within the city of El Monte without the permission of the owner or occupant.

B. It is unlawful for any person to intentionally deface, tear down, obliterate or destroy any copy, transcript or extract of or from any ordinance of the city of El Monte posted in any public place, or any proclamation, advertisement or notice set up at any place by authority of any ordinance of the city of El Monte before the expiration of the time such ordinance, proclamation, advertisement or notice was to remain posted or set up.

C. It is unlawful to affix, attach or post any sign, handbill, or advertisement to a structure unless it is authorized under the El Monte Municipal Code. The Police Department and Code Enforcement Department public works supervisor, and any additional city department head, as authorized by the City Council is authorized to order the removal of such posters. The decision to remove such posters shall not be based on content. Any person who is actually or constructively responsible for the posting, creating, printing or copying of such posters shall be liable for the costs incurred in the removal thereof and the police chief, code enforcement supervisor, department of public works supervisor, and any additional department head, as authorized by the City Council, is authorized to effect the collection of such costs. Such costs shall be the actual or reasonable costs attributable to the removal of such posters. Persons billed for such removal may appeal such cost assessment to the hearing officer. The decision of the hearing officer will be final for purposes of Code of Civil Procedure Section 1094.5, judicial review, unless the hearing officer within ninety (90) days of that decision is made, grants, in its sole discretion, a hearing on the appeal.

For purposes of subsection C of this section, there shall be a presumption that a person (corporate or individual), whose name or telephone number or address or notice of public or private appearance or business location appears on the poster is a person responsible for posting the poster.

D. Each violation of Subsection A of this section shall be a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00) or by imprisonment in the city jail not to exceed six months, or by both fine and imprisonment.

E. Each violation of subsection B of this section is an infraction punishable by a fine not to exceed two hundred dollars ($250.00).

F. Any person violating subsection C of this section is guilty of an infraction punishable by a fine of one hundred dollars ($100.00) for the first infraction, two hundred dollars ($200.00) for the second infraction in one year, and five hundred dollars ($500.00) for each infraction thereafter within one year.

(Ord. 2563 § 2 (part), 2002)

It is unlawful for any person under the age of eighteen years to have in his or her possession any graffiti implement while on any school property, grounds, facilities, buildings, or structures, or in areas immediately adjacent to these specific locations upon public property, or upon private property without the prior written consent of the owner or occupant of such private property. The provisions of this section shall not apply to possession of felt-tip-markers by minors attending, or traveling to or from school at which the minor is enrolled, if the minor is participating in a class at said school that formally requires the possession of felt-tip markers. The burden of proof in any prosecution for violation of this section shall be upon the minor student to establish the need to possess a felt-tip marker.

(Ord. 2563 § 2 (part), 2002)

It is unlawful for any person to have in his or her possession any graffiti implement while in or upon any public facility, park, playground, swimming pool, recreational facility, or other public building owned or operated by the city or while in or within one hundred (100) feet of an underpass, bridge abutment, storm drain, or similar types of infrastructure unless otherwise authorized by the city.

(Ord. 2563 § 2 (part), 2002)

It is unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan or otherwise furnish or cause to be exchanged, given, loaned or otherwise furnished, any graffiti implement to any minor without the consent of the parent or other lawfully designated guardian, which consent shall be given in advance and in writing.

(Ord. 2563 § 2 (part), 2002)

A. Every person who owns, conducts, operates or manages a retail, commercial establishment selling graffiti implements shall display and store or cause such implements to be displayed and stored in areas which may be viewable by, but shall not be accessible to the public without employee assistance.

B. Violation of this section is a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), or by imprisonment in the City Jail for a period not to exceed six (6) months, or by both such fine and imprisonment. Each day in which the violation exists shall be treated as a separate violation.

C. Civil Responsibility for Damages or Wrongful Display or Storage. Any person who displays or stores, or permits the display or storage, of any graffiti implement in violation of the provisions of this chapter shall be personally liable for any and all costs, including attorney's fees and court costs, incurred by any party in connection with the removal of graffiti, the repair of any property containing graffiti, or such party's prosecution of a civil claim for reimbursement or damages resulting from such graffiti removal or property repair, arising from the use by any person of such wrongfully displayed or stored graffiti implement in violation of the provisions of any of the sections of this chapter.

(Ord. 2563 § 2 (part), 2002)

A. The existence of graffiti on any city-owned property, or without the permission of the owner or occupant, on any non-city owned property within the city of El Monte is expressly declared to be a public nuisance.

B. The City Council hereby declares and finds graffiti to be a nuisance subject to abatement according to the provisions and procedures herein contained.

C. It is the duty of both the owner of the property to which the graffiti has been applied, and any person who may be in possession or who has the right to possess such property, to keep such property clear and free of graffiti at all times.

D. The existence of any surface of a structure on any non-city owned property within the city of El Monte where such surface has been defaced with graffiti after removal more than five (5) times in twelve (12) months is hereby deemed to be a nuisance, and may be abated by the city by requiring modifications thereto, or to the immediate areas surrounding same, according to the provisions and procedures adopted by the city. Such modifications may include, but are not limited to: retrofitting of such surface with such features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient, expedient or efficient removal of graffiti therefrom. The city may, at its option, assess the cost of such modification against the property owner, provided that such assessment may not exceed a maximum of five hundred dollars ($500.00).

(Ord. 2563 § 2 (part), 2002)

A. Any person applying graffiti on city-owned property or within the city of El Monte shall have the duty to remove same within twenty-four (24) hours after notice by the city or private owner of the property involved. Such removal shall be done in a manner prescribed by the police chief, code enforcement supervisor, department of public works supervisor, or his or her designee or any additional city department head as authorized by the City Council, and may be deemed by the City Council to satisfy any payment or penalty that might otherwise be imposed.

B. Any person applying graffiti shall be responsible for such removal or for the payment thereof. Failure of any person to so remove graffiti or pay for its removal shall constitute an additional violation of this chapter. Where graffiti is applied by an unemancipated minor, the parent(s) or legal guardian(s) shall also be responsible for such removal or for the payment therefore. The police chief, the code enforcement supervisor, department of public works supervisor or his or her designee or any other department head as authorized by the City Council may convert such payment into equivalent forms of community service hours. Such payment or equivalent forms of community service hours shall be in addition to any other penalties imposed.

(Ord. 2563 § 2 (part), 2002)

Graffiti may be removed by either of the following methods:

A. A responsible party shall remove graffiti defacing the property for which they are the responsible party within ten (10) days after service of notice that there is graffiti on the property. Notice shall be given to the responsible party by first class mail.

1. A responsible party may be relieved of the requirement to remove the graffiti within ten (10) days after service of the notice if

a. The responsible party demonstrates by a preponderance of the evidence that he or she does not have the financial ability to remove the defacing graffiti, or

b. It can be demonstrated by the responsible party that the responsible party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it shall be unlawful to permit such property to remain defaced with graffiti for a period of fifteen (15) days after service by first-class mail of notice of same.

B. Right of City to Remove.

1. Whenever the city becomes aware, or is notified and determines that graffiti is located on non-city owned property within the city of El Monte that is viewable by persons utilizing any public right-of-way in the city, the city may use public funds to provide for the painting or repairing of same.

a. Any painting or repair for which the cost is estimated to exceed one thousand dollars ($1,000.00) must be authorized by the City Council before it is undertaken.

b. The City Council may authorize the repair if it finds the painting or repair is necessary to detrimental affects to the neighborhood or community from the graffiti.

2. Right of Entry on Private Property.

a. Prior to entering upon private property or property owned by a public entity other than the city of El Monte for purposes of graffiti removal, the city shall secure the consent of the responsible party, and a release of the city from any liability, if possible.

C. If a responsible party fails to remove the offending graffiti within the time herein specified, or if they have refused to consent for entry onto the property by the city on terms acceptable to the city and consistent with the provisions of this section, the city may commence abatement and cost recovery proceedings for the removal of the graffiti pursuant to the provisions of Chapter 8.44. Notwithstanding the foregoing, owner occupied single-family residences are excluded from such cost recovery proceedings, including the recordation of a lien on the property.

1. Whenever the police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, determines that graffiti has been applied to non-city owned property within the city of El Monte, the police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head as authorized by the City Council, determines that the graffiti is obnoxious and that it is in the interest of the city of El Monte to remove such graffiti through the use of city resources, then the police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, obtains the consent of the private property owner and release of the city from liability.

2. a.

Whenever the police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, determines that graffiti is being maintained upon any non-city owned property within the city of El Monte in violation of this chapter, the police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, may issue a written notice and order to abate the graffiti. The notice shall be issued to the owner of the property and shall inform the owner that the owner is maintaining graffiti that constitutes a public nuisance and that maintenance of the graffiti is a violation of El Monte Municipal Code. The notice shall state that the graffiti is not removed within that time, then the city proposes to remove the graffiti and the cost of such removal, if not paid by the owner, shall be made a lien upon the property. Notwithstanding the foregoing, a notice of graffiti nuisance shall not be issued to the owner of a single-family residence that is owner-occupied.

b. The notice shall also inform the property owner that if the graffiti is not removed within the specified ten (10) day period, then a hearing shall be held before the hearing officer, to hear any protest of the property owner. The notice shall specify the time and place at which the hearing officer, shall hold such hearing pursuant to subsection (C)(4) of this section. Such hearing shall be scheduled not less than ten (10) days after the date of the notice.

c. The police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, determines that compliance within the time specified in the notice would place an undue burden on the property owner.

3. a.

The notice issued pursuant to subsection (C)(2) of this section shall be addressed to the owner of the property as shown on the latest tax assessment roll at the owner's last known address and shall be delivered by depositing a copy of the notice in the United States mail, postage paid, or personally delivering a copy of the notice to the owner. Notice shall also be posted in a conspicuous place on the subject property. Except no such notice shall be either mailed to or posted on an owner-occupied single-family residence.

b. The failure of any person to receive notice shall not affect the validity of any proceeding under this chapter.

4. Before any abatement of any graffiti, the police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, shall hold a hearing regarding the proposed abatement to determine whether the graffiti constitutes a public nuisance and whether abatement is appropriate. The hearing officer shall receive and consider all relevant evidence presented at the hearing. Any interested person shall be given notice and opportunity to be heard.

5. The hearing officer shall provide notice of the hearing officer's decision and shall provide an order to abate the graffiti, if appropriate, to the owner of the subject property as shown in the latest tax assessment as shown in subsection (C)(3) of this section.

6. The police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, may order that the city abate any graffiti that has been determined to be a public nuisance and that remains unabated at least seven (7) days after the hearing officer gives notice of the hearing officer's decision and issues an order to abate under subsection (C)(5) of this section.

7. a.

The police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, shall keep an account of the costs, including incidental expenses, of abating such graffiti on each separate property where the work is done and shall render an itemized report in writing to the City Council showing the costs of abatement of the graffiti. The term incidental expenses shall include but is not limited to the actual expenses and costs of the city in the preparation of notices, title searches, specifications and contracts, inspection of work, the cost of posting and mailing required under this chapter, any attorney's fees expended in the abatement of the nuisance, all costs and nuisance abatement action, and all costs or expenses to which the city may be entitled under state law. Costs and expenses for which the city may be reimbursed begin to accrue at the time the city first receives a complaint regarding the graffiti. Costs and expenses may be recovered once it has become necessary for the city to conduct an abatement hearing. Notwithstanding the foregoing, costs and expenses of abatement may not be recovered from the owners of single-family residences that are owner-occupied.

b. The police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, shall notify, in writing the owner or possessor of the property upon which graffiti has been abated by the city, the cost of said abatement in accordance with Section 25845 of the Government Code. Within ten (10) days of the mailing of such notice, any such party concerned and any other person having any right, title, or interest in the property, may file with the said city a written request for a hearing on the correctness, reasonableness or both of such claim of abatement costs. The police chief, code enforcement supervisor, department of public works supervisor or his or her designee or any additional city department head, as authorized by the City Council, shall then cause notice of the time and place of the hearing before the public works supervisor or his or her designee to be given to the owners and possessors of the property, and to any other interested person requesting the same by United States mail, postage prepaid, addressed to the person at his/her last known address at least five (5) days in advance of the hearing.

c. The time and place fixed for receiving the report. The department of public works supervisor or his or her designee shall hear and pass upon the report together with any objections or protests raised by any of the persons liable for the cost of abating the nuisance. Thereupon, the department of public works supervisor or his or her designee shall make such revision, correction and modification to the report as it may deem just, after which the report as submitted, or as revised, corrected or modified, shall be confirmed. The decision of the department of public works supervisor or his or her designee is final.

8. If the total cost of the abatement of the graffiti by the city is not paid to the city within ten (10) days after the date of notice of the cost of the abatement, the city shall record, in the Office of Finance, a statement of the total balance due to the city, a legal description of the property, and the name of the owner concerned. From the date of such recording, the balance due will constitute a lien on the property. The lien will continue in full force and effect until the entire amount due, together with interest as the maximum legal rate accruing from the date of the completion of the abatement, is paid in full. Notwithstanding the foregoing, no lien shall be placed on a single-family residence which is owner occupied.

9. The city may also, in accordance with the provisions of the laws of the State of California, cause the amount due to the city by reason of its abating graffiti together with interest at the maximum legal rate, accruing from the date of completion of the abatement, to be charged to the owners of the property, on the next regular bill. All laws of the State of California applicable to the levy, collection and enforcement of the city taxes are hereby applicable to the collection of these charges. Notwithstanding the foregoing, no charges shall be added to the tax bill of an owner of a single family residence that is owner-occupied.

10. The City Council may bring appropriate actions, in a court of competent jurisdiction, to collect any amount due by reason of the abatement of graffiti by the city and to foreclose any existing liens for such amounts. Notwithstanding the provisions of this chapter, the city may bring the appropriate civil and criminal action in a curt of competent jurisdiction for abatement of any nuisance within the city pursuant to any other provision of law.

D. Ease of Removal Provisions.

1. Any gas, telephone, water, sewer, cable, telephone or other utility operating in the city, other than an electric utility, shall paint their above surface metal fixtures which are installed after the effective date of this chapter with a uniform paint type and color as directed by the department of public works supervisor or his or her designee.

2. Encroachment permits issued by the city may, among other things, be conditions on (a) the permitee applying anti-graffiti material to the encroaching object or structure of a type and nature that is acceptable to the department of public works supervisor or his or her designee; (b) the immediate removal by the permittee of any graffiti; (c) the right of the city to remove graffiti or to paint the encroaching structure; (d) the permittee providing city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object or structure containing graffiti.

3. In imposing conditions upon conditional use permits, variances, building permits to the extent permitted by this code, or other similar land use entitlement or development or design applications, the city may impose any or all of the following conditions or other similar or related conditions:

a. Applicant shall apply anti-graffiti material of a type and nature that is acceptable to the department of public works supervisor or his or her designee to such of the publicly viewable surfaces to be constructed on the site deemed by the supervisor or designee, to be likely to attract graffiti ("graffiti attracting surfaces");

b. Applicant shall grant in writing, the right of entry over and access to such parcels, upon forty eight (48) hours' posted notice, by authorized city employees or agents, for the purpose of removing or painting over graffiti on graffiti-attracting surfaces previously designated by the department of public works supervisor or his or her designee. Such grant shall be made an express condition of approval and shall be deemed to run with the land.

c. Applicant, and any and all successors in interest, shall for a period of two years after approval, provide the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting or removal of designated graffiti-attracting surfaces;

d. Persons applying for subdivision maps shall, as part of any conditions, covenants and restriction, covenant, which covenant shall run with the land in a form satisfactory to the city, that the owners of the lots shall immediately remove any graffiti placed on public viewable trees and structures thereon to the city's satisfaction.

(Ord. 2563 § 2 (part), 2002)

It is the city's intent that pursuant to California Penal Code Section 640.6(a), all acts of graffiti vandalism occurring within the city shall be prosecuted as misdemeanors pursuant to California Penal Code Section 594, et seq., or this chapter.

A. Criminal Penalties. Any violation of this chapter shall be a misdemeanor punishable by either six (6) months in jail, a five hundred dollar ($500.00) fine, or both such fine and imprisonment, and by the performance of community service in the form of graffiti-clean-up to the maximum extent permitted by law. Each person, firm, corporation, or partnership shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of the provisions of this code is committed, continued, or permitted by such a person, firm, corporation, or partnership, and shall be deemed punishable thereof as provided in this section.

B. Parental Liability. Any parent or legal guardian having custody and control of a minor who violates any section of this chapter, shall be personally liable for any and all costs to the city or any person or business incurred in connection with the removal of graffiti caused by conduct of said minor, and for all attorney's fees and court costs incurred in connection with the civil prosecution of any claim for damages or reimbursement not to exceed ten thousand dollars ($10,000.00) for each violation of the minor.

(Ord. 2563 § 2 (part), 2002)

A violation of any provision of this chapter shall constitute a nuisance and may be abated by the city through civil process by means of a restraining order, preliminary or permanent injunction, or in any manner provided by law for the abatement of such nuisance. The procedures provided in this chapter are in addition to all other remedies and cost recovery options available to the city by law or in equity, including, but not limited to, those provided in Chapter 1.19 of this code.

(Ord. 2563 § 2 (part), 2002)

(Ord. No. 2949, § 7, 7-2-2019)

A. Nothing in this code shall prohibit the enforcement of any laws or definitions regarding graffiti, anti-graffiti, or its implements as found in the California Code and is intended to supplement such laws. This includes, but is not limited to the Civil Code, Penal Code, Evidence Code, Government Code, and the Business and Professions Code of the State of California.

(Ord. 2563 § 2 (part), 2002)