Montclair Municipal Code Ch. 7.04 Graffiti Prevention, Prohibition, and Removal

The City Council finds and declares as follows:

A. Graffiti on public or private property is a condition of blight that not only depreciates the value of property that has been the target of such vandalism but also depreciates the value of the adjacent and surrounding properties so as to create a negative impact upon the entire community.

B. Graffiti has been found to be associated with criminal activity and delinquency. It is also a means of identification and intimidation utilized by gangs, and its presence may further gang-related activities. The power of graffiti to create fear within the community and blight upon the landscape, devaluing property and detracting from a sense of community enjoyed by the residents of the City of Montclair, goes beyond the cost of cleanup or removal. Not only is graffiti a criminal act of vandalism, but it is also a social crime upon the quality of life and freedom from intimidation that residents desire in their neighborhoods.

C. Acts of graffiti are often committed by persons under the age of 18 years using aerosol containers of spray paint and/or felt-tip markers. These implements of graffiti are frequently stolen from retail stores by minors; and, as such, retail stores that display and/or sell these implements should be prohibited from selling them to minors and should be required to take reasonable steps to prevent their theft.

D. California Government Code Section 38771 authorizes the City to declare what constitutes a nuisance. Section 53069.3 further authorizes the City, under certain circumstances, to provide for the removal of graffiti and other inscribed materials 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 public and private property, it tends to remain. Other properties may then become the target of graffiti with the result that the entire neighborhood is affected and becomes a less desirable place in which to live.

E. The City of Montclair appropriates funds for the removal of graffiti from privately owned real or personal property located within the City. While this public service benefits the entire community, it provides no incentive to private property owners to deal directly with the problem and to formulate their own ideas, solutions, and mitigation measures to avoid being victimized time and time again. The perpetual provision of free graffiti removal services is not an effective deterrent to the escalation of graffiti vandalism and is not a cost-effective use of public funds.

F. It is the purpose and intent of the City Council of Montclair, 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 public and private property, walls, vehicles, and other structures. Such acts are destructive of the rights and values of private property owners as well as of the entire community. It is the further intent of the City Council, through the adoption of this chapter, to provide notice to all of those who disregard the property rights of others, that the Montclair Police Department, Code Enforcement Unit, City Attorney/Prosecutor's Office, and the District Attorney's Office will strictly enforce the law and vigorously prosecute those persons engaging in the defacement of public or private properties.

(Ord. 07-901 § 2 (part))

For the purposes of this chapter, the following terms shall have the meanings respectively ascribed to them in this section:

Adhesive label means any so called "bumper sticker," sheet of paper, fabric, plastic, or other material with an adhesive backing.

Aerosol paint container means any aerosol container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint, undercoating, spray insulation, or other substance capable of defacing property.

City means the City of Montclair.

Costs means and includes, but are not limited to, court costs, attorneys' fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, and the law enforcement costs incurred by the City in identifying and apprehending the person who created, caused, or committed the graffiti or other inscribed material on the publicly or privately owned permanent real or personal property within the City.

Enforcement officer means any City official authorized to enforce the provisions of this chapter including, but not limited to, the Montclair Police Department, Code Enforcement Unit, and Public Works Department as well as any contract agent authorized by the City to abate graffiti nuisances described in this chapter.

Felt-tip marker means any indelible marker or similar implement with a tip that, at its broadest width, is greater than one-eighth of an inch and that contains an ink or other pigmented liquid.

Graffiti means any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on or otherwise glued, posted, or affixed to or on any surface, regardless of the nature of the material, to the extent that the same was not authorized in advance by the owner thereof.

Graffiti implement means an aerosol paint container; a felt-tip marker; gum label; paint stick; crayon; etching tool capable of scarring glass, metal, concrete, wood, or other surface; etching cream or other such solvent; adhesive label; or any other device capable of being used to leave a visible mark at least one-eighth of an inch in width upon any surface of any material.

Paint stick or graffiti stick means a device containing a solid form of paint, chalk, wax, epoxy, caulk, or 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.

Responsible Party means any person who owns, possesses, occupies, or otherwise has responsibility for the repair or maintenance of real property at which there exists graffiti on any building, structure, tree, shrub, sidewalk, curb, or vehicle. Responsible Party shall also include any minor (or parent or guardian of a minor) or other person who causes or permits the application of graffiti or other inscribed material.

Retrofitting means and includes, without limitation, the restoration, modification, or alteration of a building or structure to remove graffiti, to prevent or inhibit the recurrence of graffiti, or to return the building or structure to an acceptable, usable, unblemished, unblighted, or original state or condition.

Vehicle means a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails.

(Ord. 07-901 § 2 (part))

It is unlawful and a misdemeanor for any person to apply graffiti to any building, structure, tree, shrub, curb, or vehicle located within the City. It shall also be unlawful and a misdemeanor for any person to apply or affix any adhesive label to any building, structure, tree, shrub, curb, or vehicle not owned or lawfully possessed by such person, or without advance authorization by the owner thereof.

(Ord. 07-901 § 2 (part))

A. It is unlawful and a misdemeanor for any person under the age of 18 years to have in his or her possession any graffiti implement or other instrument as described hereinbelow while upon private property, without the prior written consent of the owner of such property, or upon a public highway, street, alleyway, park, playground, swimming pool, public building, or any area open to the public:

1. Any spray can containing anything other than a solution that can be removed by water after it dries.

2. Any spray can tips, other than those affixed to a spray can, not meeting the description of subsection (A)(1) of this section.

3. Any marker pens containing anything other than a solution that can be removed with water after it dries.

4. Any container holding anything other than solution that can be removed with water after it dries and that can be used to apply that solution. This includes acrylic paint tubes, oil paint tubes, shoe dyes, paint sticks, and bottles and cans of such solutions.

5. Objects capable of etching glass or ceramic surfaces including, but not limited to, bits, grinding stones, glass cutters, scribes, broken spark plug ceramic, chisels, and any solution capable of etching these surfaces when applied including acids and etching baths.

B. The provisions of this section shall not apply to any person under the age of 18 years attending or traveling to or from school, at which time the minor is enrolled, if the minor is participating in a class at said school that has a written requirement of the class for the possession of the implements or instruments described in this section. The burden of proof in any prosecution for a violation of this section shall be upon the minor student to establish enrollment in a class that requires the possession of a graffiti implement or other instrument described hereinabove.

(Ord. 07-901 § 2 (part))

It is unlawful and a misdemeanor for any person to have in his or her possession any graffiti implement while in or upon any public park, playground, swimming pool, recreation facility, or while in, or within, 10 feet of an overpass, underpass, bridge, abutment, storm drain, or similar types of infrastructure not normally used by or accessible to the public, except as may be authorized by the City.

(Ord. 07-901 § 2 (part))

It is unlawful and a misdemeanor for any person, other than a parent or legal guardian, to sell, exchange, give, lend, or otherwise furnish, or cause or permit to be exchanged, given, lended, or otherwise furnished, any graffiti implement to any person under the age of 18 years without the consent of the parent or other lawfully designated guardian, which consent shall be given in advance in writing.

(Ord. 07-901 § 2 (part))

Notwithstanding the provisions of Section 7.04.080 of this chapter, it is unlawful for any person to sell, give, trade, lend, or exchange, or display for sale, trade, lend, or exchange, any graffiti implement at any swap meet, open-air market, flea market, or yard sale.

(Ord. 07-901 § 2 (part))

A. Display Requirements. It is unlawful and a misdemeanor for any person or business engaged in a commercial enterprise to display for sale, trade, loan, or exchange any graffiti implement except in an area from which the public shall be securely precluded without employee assistance. Two such acceptable methods for displaying graffiti implements for sale shall be by containment in: (1) a completely enclosed cabinet or other storage device that shall be permanently affixed to a building or structure and that shall, at all times except during access by authorized representatives, remain securely locked; or (2) in an enclosed area behind a sales or service counter from which the public is precluded from entry. Nothing herein shall relieve such person or business entity from, at all times, complying with the requirements of California Penal Code Section 594.1(c) by posting signs as described therein.

1. Any person or business engaged in the retail sale of any graffiti implement must display at a conspicuous location a legible sign measuring not less than 12 inches by 12 inches with letters at least ½ inch in height, which states:

"It is unlawful for any person to sell or give to any individual under the age of eighteen years, without prior written authorization from a parent or legal guardian, any implement or other device capable of being used to deface real or personal property. Any person who maliciously defaces real or personal property is guilty of vandalism that is punishable by a fine, imprisonment, or both."

B. Storage Requirements. It is unlawful and a misdemeanor for any person or business engaged in the commercial enterprise of selling, providing, lending, or trading graffiti implements to store any graffiti implement except in either: (1) a completely enclosed room that shall at all times, except during access or actual occupancy by the owner or authorized adult representative of the owner, remain securely locked; or (2) in a completely enclosed cabinet or other storage device that shall be permanently affixed to a building or building structure and that shall at all times, except during access by the owner or an adult representative of the owner, remain securely locked. For purpose of this section, an owner or authorized representative of the owner shall be deemed to actually occupy a room even during brief periods of absence if the room is contained within a larger structure that is occupied by the owner.

C. Civil Responsibility for Wrongful Display or Storage. In addition to the penalties provided in Section 7.04.140 of this chapter, any person or business that displays or stores or permits the display or storage of any graffiti implement in violation of the provisions of this section shall be personally liable for any and all costs, including attorneys 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 this section or of any provision of the California Penal Code.

(Ord. 07-901 § 2 (part))

Notwithstanding any other provision of this Code, it is unlawful and a misdemeanor for any person to cause, permit, aid, abet, or suffer any graffiti that is visible from any real property (whether privately or publicly owned), public street, sidewalk, alley, or other public right-of-way or other area open to the public to remain on any building, structure, tree, shrub, sidewalk, curb, or vehicle owned, possessed, or within the custody or control of such person or located on real property owned, possessed, or within the custody or control of such person. Each day that graffiti is maintained constitutes a new and separate offense and is subject to the penalties set forth in Chapters 1.04 and 1.12 of this Code.

(Ord. 07-901 § 2 (part))

A. Declaration of Nuisance. Pursuant to California Government Code Section 38771, the City Council declares the following conditions to constitute a public nuisance:

1. Graffiti or other inscribed material on a building, structure, tree, shrub, sidewalk, curb, or vehicle in the City that is visible from any real property (whether privately or publicly owned), public street, sidewalk, alley, or other public right-of-way or other area open to the public.

2. The existence of any surface of a building, structure, tree, shrub, curb, or vehicle in the City that has been defaced with graffiti or other inscribed material after removal more than three times in any 12 month period (hereinafter, "graffiti-attracting surface").

B. Abatement of Nuisance. The City Council declares that the maintenance of the public nuisance conditions listed in subsection A of this section is subject to abatement pursuant to the provisions of Chapter 10.44 of this Code. Furthermore, the City Council authorizes the appropriation and use of public funds to remove graffiti or other inscribed material from publicly or privately owned real or personal property located within the City and to repair, restore, replace, or retrofit publicly or privately owned property within the City that has been defaced with graffiti or other inscribed material that cannot be removed cost effectively or to otherwise abate graffiti-attracting surfaces as defined hereinabove.

1. In instances where a responsible party consents to the abatement of graffiti or graffiti attracting surfaces by City forces, the Director of Public Works, or his or her designee, is authorized to immediately abate the nuisance.

C. Notice to Abate. Notwithstanding the provisions of Chapter 10.44, whenever any Enforcement Officer determines the existence of a nuisance as defined by and declared in subsection A of this section and determines that City employees, representatives, or contract agents may need to abate said nuisance, the Enforcement Officer shall issue a "Notice to Abate Graffiti Nuisance" (hereinafter, "Notice to Abate Graffiti") to the owner and the entity in possession of or in control of the property on which the nuisance exists, or to any other responsible party, requiring the abatement of the nuisance within 72 hours of the date of service of the Notice to Abate Graffiti or within some other reasonable time in connection with a "graffiti-attracting surface."

1. Contents of Notice to Abate Graffiti. A Notice to Abate Graffiti issued pursuant to this chapter shall contain the following provisions:

a. The address of the real property on which the nuisance condition exists.

b. A brief description of the nuisance condition(s).

c. A reference to the law prohibiting or pertaining to the nuisance condition.

d. A brief description of the required corrective actions.

e. A time period and/or schedule in which to complete the nuisance abatement actions (with all required City approvals, permits, and inspections, when applicable) (hereinafter, "compliance period").

f. The period and manner in which a responsible person may contest the Notice to Abate Graffiti pursuant to this chapter.

g. A statement that if the violations are not abated within the time specified or a timely appeal is not made, such nuisance may be abated by City Agents in the manner provided in the Notice. On such occasions, all costs of the abatement shall be assessed against the responsible person(s) and/or the subject property as a lien or as a special assessment (in accordance with the provisions of Chapter 10.44) or in any other manner provided by law.

2. Service of Notice to Abate Graffiti.

a. Notice to Abate Graffiti shall be personally served upon the responsible parties by either personal delivery or by certified first class mail. The time and date on which a Notice to Abate Graffiti is personally served or is placed in a U.S. Postal Service mail receptacle shall constitute the date of service. Failure of any responsible party to receive a Notice to Abate Graffiti shall not invalidate any action or proceeding pursuant to this chapter.

b. The Enforcement Officer issuing the Notice to Abate Graffiti to an owner of real property may rely on the owner's mailing address according to the last equalized assessment roll of the San Bernardino County Recorder's office in determining a service address for the Notice to Abate Graffiti.

D. Method of Abatement. Where graffiti is being abated by the repainting of the surface on which the graffiti exists, the responsible party shall use paint that matches the color of the remaining portions of the structure being painted or as otherwise approved by the Community Development Director. As it relates to a graffiti-attracting surface (as defined by and declared in subsection (A)(2) of this section), a Notice to Abate Graffiti may require, but shall not be limited to, any of the following modifications (or combinations thereof) to said building, structure, tree, shrub, sidewalk, curb, or vehicle (or the property on which said building, structure, tree, shrub, sidewalk, curb, or vehicle exists) as methods of abatement (the costs of which are to be borne by the responsible party):

1. Retrofitting of said surface or structure (at a cost not to exceed 10 percent of the assessed value of the property on which the nuisance exists as indicated on the last equalized assessment roll of the San Bernardino County Recorder's office).

2. Application and/or use of antigraffiti materials (as approved by the Director of Community Development or his/her designee) to the surface or structure, such as antietching films or antigraffiti paints.

3. Installation of landscaping (as approved by the Director of Community Development) so as to screen or to provide a barrier to the surface or structure.

4. Installation of additional lighting (as approved by the Director of Community Development).

E. Appeal of Notice to Abate Graffiti.

1. Hearing Before City Manager. Notwithstanding the provisions of Section 10.44.080 or of Chapter 1.08 of this Code, a request for a hearing before the City Manager as it relates to the nuisance conditions referenced in subsection A of this section and payment of all applicable fees must be filed with the City Manager within four calendar days from the date of service of the Notice to Abate Graffiti. Notwithstanding the provisions of Section 10.22.080 or of Chapter 1.08 of this Code, a Notice to Abate Graffiti issued in connection with nuisance conditions in subsection A of this section is not appealable to the Planning Commission; and any Order to Comply issued by the City Manager or his or her designee shall be final and binding.

a. Failure of the City Manager to receive a timely request for a hearing and/or payment of applicable fees constitutes a waiver of the right to contest a Notice to Abate. In this event, the Notice to Abate is final and binding.

F. Scope of Abatement. Whenever the City authorizes the use of public funds for the removal of graffiti, the painting or repairing of surfaces containing graffiti, or for the abatement of graffiti-attracting surfaces, the City shall not authorize or undertake to provide for the painting or repairing of any more extensive area than that where the graffiti or graffiti-attracting surface is located, unless the City Manager, or his or her designee, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid aesthetic disfigurement to the neighborhood or community, or unless a responsible party agrees in writing to pay for the costs of repainting or repairing the more extensive area.

G. Costs of Abatement. The costs of abatement performed by City forces, or agents thereof, shall constitute a personal obligation against the responsible parties (as defined in this chapter) and may be assessed in any, or all, of the following manners:

1. Special assessment or nuisance-abatement lien in accordance with the provisions of Chapter 10.44 of this Code.

2. Graffiti-abatement lien against any property owned by a minor or other person (or the parent or guardian of any minor) creating, causing, or committing a graffiti nuisance as authorized by Section 38772 of the California Government Code.

3. Any other manner provided in the City's Graffiti Abatement Protocols/Policy (in instances where the owner or tenant of a property where a graffiti nuisance exists consents to the removal of the nuisance by City forces).

4. Any other manner provided or authorized by law.

(Ord. 07-901 § 2 (part))

A. In approving tentative or parcel maps, subdivision maps, conditional use permits, variances, or other land-use entitlements, the City shall consider imposing conditions reasonably related to the control of graffiti and/or the mitigation of the impacts of graffiti. Such conditions may include, without limitation, any or all of the following:

1. Installation and use of antigraffiti materials (as approved by the Director of Community Development or his/her designee) on surfaces that are likely to be graffiti-attracting surfaces.

2. Installation and use of landscaping to screen or provide a barrier to surfaces prone to graffiti or are likely to be a graffiti-attracting surface.

3. Installation and use of additional lighting to areas that are likely to be graffiti-attracting surfaces and areas adjacent thereto.

4. Applicant or owner shall immediately remove any graffiti at the property.

5. Right of access by City forces to remove graffiti.

6. Applicant or permittee to supply the City with sufficient matching paint and/or antigraffiti material on demand for use in the abatement of graffiti by City forces.

7. Any gas, telephone, water, sewer, cable, telephone, and other utility, other than electric, operating in the City shall paint their above-surface fixtures installed after the effective date of the chapter with a uniform paint type and color as directed by the Director of Community Development.

B. Persons applying for any tentative or parcel maps, subdivision maps, conditional use permits, variances, or other land-use entitlements shall, as part of any conditions, covenants, or restrictions of any approval for said application, covenant, which covenant shall run with the land in a form satisfactory to the City, that the applicant, and any and all successors in interest of the property, shall comply with all conditions, covenants, or restrictions of said approval.

(Ord. 07-901 § 2 (part))

A. Pursuant to California Government Code Section 53069.5, the City does offer a reward in an amount to be established by Resolution of the City Council for information leading to the arrest and conviction of any person for a violation committed within the City of Montclair pursuant to California Penal Code Sections 594 or 594.3 (by the use of graffiti), 640, 640.5, and 640.6 or Sections 7.04.030, 7.04.040, 7.04.050, 7.04.060, or 7.04.070 of this chapter. In the event of multiple contributors of information, the reward amount shall be divided by the City in the manner it shall deem appropriate. For the purposes of this section, diversion of the offending violator to a community service program, or a plea bargain to a lesser offense, shall constitute a conviction.

B. Claims for rewards under this section shall be filed, in writing, with the City Clerk. Each claim shall:

1. Specifically identify the date, location, and kind of property damaged or destroyed.

2. Identify by name the person who was convicted.

3. Identify the court and the date upon which the conviction occurred.

C. No claim for a reward shall be allowed by the City Council unless the City investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied. The investigation must determine that the claimant's information was relevant and directly responsible for the arrest and conviction of the suspect.

D. Any person committing graffiti vandalism, and if said person is an unemancipated minor, then the parent or lawful guardian of said minor, shall be civilly liable for any reward paid pursuant to this section.

(Ord. 07-901 § 2 (part))

A. Pursuant to California Civil Code Section 1714.1(b), where graffiti is applied by an unemancipated minor, the parents or legal guardian of said minor shall be jointly and severally liable for payment of civil damages resulting from the misconduct of the minor in an amount not to exceed Twenty-Five Thousand (25,000) Dollars for each such offense or in an amount designated by any amendment to California Civil Code Section 1714.1(b). The parent or legal guardian of said minor shall also be civilly liable for any reward paid pursuant to Section 7.04.120 of this chapter.

B. Pursuant to California Government Code Section 38772, the parent or guardian having custody and control over a minor shall be jointly and severally liable for the expense of any abatement of a graffiti nuisance; and the City may make the costs of abatement a lien against the property of the parent or guardian having custody and control over the minor.

(Ord. 07-901 § 2 (part))

A. Criminal Penalties. Any violation of this chapter shall constitute a misdemeanor offense and be subject to the penalties set forth in Chapter 1.12 of this Code.

B. Additional Penalties. Whenever deemed appropriate, it is the City's intent to petition a sentencing court to impose the following additional penalties or conditions of any grant or probation, diversion, deferred entry of judgment, or other court supervision (including upon a determination that a minor is to be a ward of the court as a result of committing an act of vandalism or graffiti) upon conviction:

1. Suspension or delay in issuance of driver's license (pursuant to California Vehicle Code Section 13202.6).

2. Community service and/or graffiti-removal service (pursuant to California Penal Code Sections 640.6 and 1203, et seq., California Welfare and Institutions Code Sections 728 and 729.8, and California Vehicle Code Section 42001.7).

3. Payment of restitution for the expenses/costs of abatement pursuant to California Penal Code Section 1202.4, California Government Code Section 38772, or other State law.

C. Cumulative Remedies. The remedies provided in this chapter are in addition to other remedies and penalties available under provisions of other applicable City Ordinances, the laws of the State of California, or the laws of the United States.

(Ord. 07-901 § 2 (part))