CHAPTER 22
OFFENSES/NUISANCES Revised 10/11

Article 1    OFFENSES -- MISCELLANEOUS

§ 22-1    Alcoholic beverages -- consumption and possession in public.

§ 22-2    Ball playing in streets.

§ 22-3    Bay of Monterey -- placing, etc., of boats, rubbish, etc., on shore.

§ 22-4    Aggressive Solicitation and Prohibited Solicitations (Ord 3355, 05/2005; Ord 3360, 09/2005)

§ 22-5    Curfew -- minors under 18 years of age.

§ 22-6    Same -- responsibility of parents.

§ 22-7    Same -- penalties.

§ 22-8    Fire alarms -- false alarms prohibited.

§ 22-9    Same -- tampering with, unauthorized use of, etc., fire alarm system.

§ 22-9.1    Installation and operation of alarm devices.

§ 22-10    Repealed.

§ 22-11    Gambling -- operation of card tables, gambling devices, etc. in businesses for compensation, etc., prohibited.

§ 22-12    Bicycles, roller skates, skateboards, etc., prohibited in certain areas.

§ 22-12.5    Prohibition of Motorized Scooters on the Recreation Trail (Ord 3330, 10/2003)

§ 22-13    Reckless operation of bicycles, skateboards, skates, in-line skates, and other similar vehicles on the Recreation Trail.

§ 22-14    Skateboards on Recreation Trail between the head of Municipal Wharf No. 1 and the City limit with Pacific Grove prohibited.

§ 22-15    Urinating and defecating in public prohibited.

§ 22-16    Loitering.

§ 22-17    Noise -- permit for use of loudspeakers, amplifiers, etc. -- required.

§ 22-17.1    Same -- applications generally.

§ 22-17.2    Same -- contents of application.

§ 22-17.3    Same -- issuance or denial.

§ 22-17.4    Same -- revocation.

§ 22-17.5    Same -- appeal upon denial or revocation.

§ 22-17.6    Same -- transfer; compliance with requirements.

§ 22-17.7    Same -- intent of requirements.

§ 22-17.8    Same -- applicability of Sections 22-17 to 22-17.7.

§ 22-18    Same -- certain noises prohibited.

§ 22-18.1    Same -- oral advertising prohibited on Municipal Wharf No.1.

§ 22-19    Regulation of Door-To-Door Solicitors.

§ 22-20    Utility poles -- posting, etc., of signs, notices, etc.

§ 22-21    Weapons and firearms -- certain acts prohibited while carrying concealed weapons.

§ 22-22    Same -- sale, possession, etc., of switch-blade knives, etc.

§ 22-23    Same -- discharge of firearms.

§ 22-24    Obnoxious nude conduct -- prohibited acts.

§ 22-25    Activities Conducted upon quasi-public property.

§ 22-25.5    Trespass upon Private Lands; Unwelcomed.

§ 22-26    Loitering in any parking facilities.

§ 22-26.5    Loitering at or in Public Restrooms (Ord 3322, 05/2003)

§ 22-27    Transit bus in Revenue service -- Smoking Prohibited; definitions.

§ 22-28    Same -- Littering Prohibited.

§ 22-29    Regulation of Smoking in Public Places.

§ 22-30    Minors Prohibited in billiard rooms during certain Hours.

§ 22-30.5    Screening of Harmful Matter.

§ 22-31    Massage therapy and massage businesses or establishments.

§ 22-32    Regulation of Second Hand Dealers.

§ 22-33    Prohibitions in Designated Public Restrooms.

§ 22-34    Regulation of Escort Services.

Article 2    GRAFFITI (Ord 3364; 11/2005)

§ 22-35    Findings.

§ 22-35.1    Graffiti Defined.

§ 22-35.2    Graffiti Declared a Nuisance.

§ 22-35.3    Placement of Graffiti Prohibited.

§ 22-35.4    Graffiti Prohibited.

§ 22-35.5    Notice to Property Owner to Abate Graffiti.

§ 22-35.6    Appeal of Notice to Abate Graffiti - Hearing by City Council.

§ 22-35.7    Removal by City.

§ 22-35.8    Cost of Abatement.

§ 22-35.9    Lien/Special Assessment.

§ 22-35.10    Waiver of Cost of Abatement.

§ 22-35.11    Graffiti Eradication Program.

§ 22-35.12    Penalty for Placement of Graffiti.

§ 22-35.13    Restitution.

Article 3    SMOKING REGULATIONS Repealed by Ord. 3442 C.S. (Ord 3369; 4/2006)

Article 4    ABATEMENT OF PUBLIC NUISANCES (Ord 3390; 8/2007)

§ 22-38    General Definitions.

§ 22-38.1    Public Nuisances Prohibited.

§ 22-38.2    Nuisances Defined.

§ 22-38.3    Remedies for Public Nuisance.

§ 22-38.4    Administrative Order.

§ 22-38.5    Summary Abatement.

§ 22-39    Prohibiting Medical Marijuana Dispensaries, Marijuana Dispensaries and Marijuana Sales. Revised 10/11

ARTICLE 1
OFFENSES -- MISCELLANEOUS

Sec. 22-1 Alcoholic beverages - consumption and possession in public.

Except as permitted in certain picnic areas specifically listed in Chapter 23 of this Code, regulating the use of parks and recreation areas, no person shall consume any alcoholic beverage or have in their possession any open container of any alcoholic beverage upon any public street, park, greenbelt, plaza, sidewalk, alley, lane, wharf, pier, walkway, mall, or other public place in the City.

For purposes of this section, “open container” includes any can, bottle, or other receptacle that has been opened, has a seal broken, or the contents of which have been partially removed.

This section does not apply to individuals in possession of empty alcoholic beverage containers for recycling purposes. (Ord. 3433 § 1, 2009)

Sec. 22-2 Ball Playing in streets.

No person shall play ball, ball and catch, baseball or any other game where any ball or other object is thrown from, to, or at one or another players, or from one place to another, or to or against any object or point or place, upon any of the public streets of the City.

Sec. 22-3. Bay of Monterey - Placing, etc., of Boats, Rubbish, etc., on Shore.

No person shall place, or suffer or allow to remain, boats of any kind, rubbish, debris, or other materials or thing upon the shore of the Bay of Monterey, within the City, below ordinary high water mark.

Sec. 22-4. Aggressive Solicitation and Prohibited Solicitations (Ord 3360: 09/05).

(a)    No person may solicit, ask or beg in an aggressive manner in any public place, which is defined to include but not be limited to any street, highway, sidewalk, parking lot, plaza, transportation facility, school, place of amusement, park, playground, beach, boardwalk, hiking or walking trail, designated open space area, and any doorway, entrance, hallway, lobby and other portion of any business establishment or premises open to the public.

“Aggressive manner” is defined as any of the following actions:

1.    Approaching or speaking to a person, or following a person before, during or after soliciting, asking or begging, if that conduct is intended or is likely to cause a reasonable person to

A.    fear bodily harm to oneself or to another, damage to or loss of property, or

B.    otherwise be intimidated into giving money or other thing of value;

2.    Intentionally touching or causing physical contact with another person or an occupied vehicle without that person’s consent in the course of soliciting, asking or begging;

3.    Intentionally blocking or interfering with the safe or free passage of a pedestrian or vehicle by any means, including unreasonably causing a pedestrian or vehicle operator to take evasive action to avoid physical contact;

4.    Using violent or threatening gestures toward a person solicited either before, during, or after soliciting, asking or begging;

5.    Persisting in closely following or approaching a person, after the person solicited has been solicited and informed the solicitor by words or conduct that such person does not want to be solicited or does not want to give money or any other thing of value to the solicitor; or

6.    Using profane, offensive or abusive language which is inherently likely to provoke an immediate violent reaction, either before, during, or after solicitation.

“Solicit, ask or beg” is defined to include the spoken, written, or printed word, or bodily gestures, signs or other means with the purpose of obtaining an immediate donation of money or other thing of value or soliciting the sale of goods or services.

(b)    No person shall solicit, ask or beg within 15 feet of any entrance or exit of any bank, savings and loan association during its business hours, or within 15 feet of any automated teller machine during the time it is available for customers use. Provided, however, that when an automated teller machine is located within an automated teller machine facility, such distance shall be measured from the entrance or exit of the automated teller machine facility. Provided further that no person shall solicit, ask or beg within an automated teller machine facility where a reasonable person would or should know that he or she does not have the permission to do so from the owner or other person lawfully in possession of such facility. Nothing in this paragraph shall be construed to prohibit the lawful vending of goods and services within such areas.

1.    The provisions of this Subdivision (b) shall not apply to any unenclosed automated teller machine located within any building, structure or space whose primary purpose or function is unrelated to banking activities, including but not limited to supermarkets, convenience market and retail sales facilities, provided that such automated teller machine shall be available for use only during the regular hours of operation of the building, structure or space in which such machine is located.

(c)    No person may solicit, ask or beg in any of the following locations, or under any of the following circumstances, after dark (one-half hour after sunset to one-half hour before sunrise):

1.    public parking lot or structures.

(d)    No person may loiter on any median island or solicit, ask or beg while standing on any median island.

Sec. 22-5. Curfew -- minors under 18 years of age.

No minor under the age of 18 years shall loiter, idle, wander or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, wharves or other public grounds, public places and public buildings, or vacant lots, either on foot or in a vehicle, between the hours of 11:00 p.m. and 5:00 a.m. of the following day.

The provisions of this section do not apply to a minor accompanied by his parent, guardian, or other adult person having the lawful care and custody of the minor, or where the minor is upon an emergency errand or legitimate business directed by his parent, guardian or other adult person having the lawful care and custody of the minor.

Sec. 22-6. Same -- responsibility of parents.

No parent, guardian or other adult person having the care and custody of a minor under the age of 18 years shall knowingly permit such minor to loiter, idle or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, wharves or other public grounds, public places, and public buildings, or vacant lots, either on foot or in a vehicle, between the hours of 11:00 p.m. and 5:00 a.m. of the following day. The provisions of this Section do not apply to a minor accompanied by his parent, guardian or other adult person having the lawful care and custody of the minor, or where the minor is upon an emergency errand or legitimate business directed by his parent, guardian or other adult person having the lawful care and custody of the minor.

Sec. 22-7. Same -- penalties.

Any minor violating the provisions of Section 22-5 shall be dealt with in accordance with the juvenile court law of the state. Any parent, guardian or other adult person having the lawful care and custody of a minor violating any provisions of Section 22-6 shall be guilty of a violation of this Code and subject to the penalties therefor.

Sec. 22-8. Fire alarms -- false alarms prohibited.

No person shall willfully or designedly give, assist in giving, countenance or request or cause to be given, any false alarm of fire in any manner; provided, that this section shall not apply to members of the Fire Department in making tests or repairs under the direction of proper authorities.

Sec. 22-9. Same -- tampering with, unauthorized use of, etc., fire alarm system.

No person shall tamper, meddle or in any way interfere with any station or signal box or any fire alarm telephone system or any auxiliary appliance, or willfully break, injure, deface or remove, or make any connection or communication with, the poles, wires, boxes or other parts or fixtures of the fire alarm system so as to interrupt or interfere with the proper working of the same, or mutilate or destroy any notices that may be legally posted relating to the same.

No person shall make or cause to be made, or use or have in his possession, any key, impression or duplicate of any signal box of the fire alarm telegraph, without the written permission of the Fire Chief.

Sec. 22-9.1. Installation and operation of alarm devices.

(a)    No person, firm, corporation, partnership, or other legal entity, with the exception of governmental entities, or such alarm devices as are required to be installed by governmental entities, shall install, connect, place, or cause to be installed, connected, or placed into operation any alarm device, whether sounded or operated, on the premises or remotely sounded or operated, which is designed, intended or expected, to summon the assistance of employees of the City without first obtaining a permit for such alarm device from the City Manager or his designated representative.

(b)    Any such person, firm, corporation, partnership, or other legal entity required to obtain a permit under this section, shall file a permit application of a form provided by the City showing the type, purpose, operating procedure and such other information as may be required by the City Manager or his designated representative. A fee shall be set by resolution of the City Council which shall accompany each application, and no renewal fee shall be required except as hereinafter provided. The application shall contain a contractual provision obligating the applicant to pay any service charges imposed and shall be signed by the applicant. The application shall contain a further provision, signed by both the applicant and the alarm company servicing the applicant, that the alarm company has explained the nature of this Section and the possible fees and penalties which may be imposed hereunder upon the applicant.

(c)    The City Manager or his designated representative shall verify the information submitted pursuant to the application. No permit shall issue under this section until the City Manager or his designated representative has ascertained that all personnel with access to the alarm device will or have received adequate training in its operation. No permit shall issue under this Section until agreement to the installation, connection or placement of the alarm device has been secured from the County Communications Center.

(d)    Whenever any employee of the City is required to respond to an alarm which has been activated falsely, which is determined to have been preventable by the permittee, his agents or employees, a service fee shall be imposed upon the permittee by the City in a given month in an amount to be determined by the City Council by resolution.

(e)    Repeated false activations of any alarm device shall be grounds for revocation of the permit. Whenever the City Manager or his designated representative finds and determines that the continued operation of such alarm or alarms constitutes a detriment to the public health, safety and welfare due to repeated misallocation of public safety employees or other reasonable cause, he shall notify the permittee to disconnect the alarm and revoke the permit. Upon such notification, there shall be no response to such alarm device by employees of the City, excepting that when an appeal has been filed, service shall continue during the period of such appeal.

(f)    Any revocation of a permit under this Section may be appealed to the City Council within ten days after notification of such revocation. The appeal shall be placed on the next available Council agenda for consideration.

(g)    Whenever a permit is revoked in accordance with this Section, and that revocation is upheld by the Council or the appeal period has elapsed, reinstatement of such permit may be treated as an application for a new permit, including fee, and such reinstatement shall be conditioned upon provision by the applicant of substantial evidence that the applicant has corrected the deficiencies which caused the original revocation.

(h)    Installation, connection or operation of any alarm system after revocation of the permit (excluding any period of appeal) shall be an infraction.

(i)    Any person, firm, corporation, partnership or other legal entity operating alarm system within the City at the effective date of this Section shall have a period of 30 days in which to apply for a permit pursuant to this Section. Failure to make such application within 30 days while continuing to operate an alarm device shall be an infraction.

Sec. 22-10. (Repealed by Ordinance NO. 2180 C.S.)

Sec. 22-11. Gambling -- operation of card tables, gambling devices, etc., in businesses, for compensation, etc., prohibited.

No person, either as owner, principal agent, employee, licensee, lessee, mortgagee or in any other capacity, shall operate any card table or card tables in any store, bar, restaurant, public poolroom, public billiard room, cigar stand or any place of business, or in any room or place adjoining and connected with the same, within the City.

No person, either as owner, principal, agent, employee, licensee, lessee, mortgagee or in any other capacity, shall maintain or conduct or aid in maintaining and conducting any card table, gambling contrivance or card game for the use of which any fee or compensation is charged any player.

This Section is not intended nor shall it be construed to prohibit any act prohibited by Chapter 10, Title 9, Part 1 (commencing with Section 330) of the Penal Code of the state.

Sec. 22-12. Bicycles, roller skates, skateboards, etc., prohibited in certain areas.

In any area designated by resolution of the City Council, and signs are in place giving notice thereof, it shall be unlawful for any person to ride a bicycle or ride or propel roller skates, skateboards or similar non-motorized vehicles, on any sidewalk, street, mall, wharf, parking lot, parking garage, park, trail, or other public place.

This prohibition shall not apply to any bikeway designated in a bikeway plan adopted by the City Council nor any bikeway so designated by resolution of the City Council.

Wheelchairs and other similar vehicles for the transportation of the handicapped, baby carriages and strollers for transportation of young persons, and handcarts and other similar vehicles used for the delivery of personal property or used in construction are excluded from this prohibition.

Section 22-12.5 Prohibition of Motorized Scooters on the Recreation Trail.

No person shall operate any motorized scooter, as that term is defined in the California Vehicle Code, on the Recreation Trail. (Ord 3330; 10/2003)

Sec. 22-13 Reckless operation of bicycles, skateboards, skates, in-line skates, and other similar vehicles on the Recreation Trail.

No person shall operate any bicycle, skateboard, skates, in-line skates, or other similar self-propelled vehicles on the Recreation Trail in a reckless manner.

For purposes of this section, “reckless” shall mean operation of a vehicle in willful or wanton disregard for the safety of persons or property, and specifically includes, but is not limited to, the following specific conduct:

(a)    Operation at a speed greater than reasonable or prudent having due regard for weather, visibility, pedestrian and vehicular traffic on or crossing the trail, and condition of the vehicle;

(b)    Operation on the trail in such a manner as to result in loss of control of the vehicle;

(c)    Operation in such a manner as to result in a collision or accident involving any vehicle, property or pedestrian.

(d)    Operation when the operator is under the influence of any alcoholic beverage or drug as those terms are defined in CA Vehicle Code Section 23152; or

(e)    Operation in such a manner as to endanger life, limb, or property of any person.

Sec. 22-14. Skateboards on the Recreation Trail between the head of Municipal Wharf No. 1 and the City limit with Pacific Grove are prohibited.

Skateboarding is prohibited on certain sections of the Recreation Trail.

(a)    No person shall ride or propel a skateboard on the Recreation Trail between the head of Municipal Wharf No. 1 and the City limit with Pacific Grove.

Sec. 22-15. Urinating and defecating in public prohibited.

Prohibition of urination or defecation in public places, places open to public view, or on private property without consent of the owner.

(a)    It is unlawful for any person over the age of ten (10) years to willfully and knowingly urinate or defecate in a public place other than a restroom or in a place open to public view, or upon the private property of another without consent of the owner.

Sec. 22-16. Loitering.

Whenever two or more persons gather together in such a manner as to obstruct the free passage of any street, sidewalk, alley, public way or place used by members of the public to go from place to place, such persons shall move on or disperse when ordered to do so by a police officer. No person shall refuse or fail to disperse or move on when directed to do so by a police officer.

No person shall stand, sit, linger, idle or loiter on any street, alley, sidewalk, park or other public place, or in or about the entrance or exit of any business establishment, either on foot or in an automobile or other vehicle, in such a manner as to obstruct or hinder the free passage of persons along such public way, or obstruct or hinder persons entering and exiting from any business establishment.

For the purpose of this section, “business establishment” shall mean any retail store, food market, theater, restaurant, drive-in restaurant, gasoline service station, bar, hotel, motel or any other establishment which is open to and provides the public with any goods or services.

Sec. 22-17. Noise--permit for use of loudspeakers, amplifiers, etc., -- required.

No person, group, organization, corporation, association or partnership shall operate or cause to be operated within the City any amplified noise or sound equipment unless a permit has been obtained from the City Manager or his delegated representative.

Sec. 22-17.1. Same -- application generally.

The permit application shall be submitted not less than five working days before the date on which the use of the loudspeaker is proposed; provided, that where good cause is shown, such permit application may be considered less than three days prior to the proposed date of use.

Sec. 22-17.2. Same -- contents of application.

The permit application shall be executed on a form supplied by the City and shall contain the following:

(a)    The name, address, telephone number and other appropriate identification as may be required, of the person or persons or any groups, organization, corporation, association or partnership, and the officers of same which propose to emit amplified noise within the City.

(b)    The name, address, telephone number and other appropriate identification as may be required, of the person or persons who will actually be engaged in the emission of such amplified noise or sound if different from those above.

(c)    The proposed time and place for the emission of amplified sound or noise.

(d)    The length of time proposed for the emission of amplified sound or noise.

(e)    Such other similar information as the City Manager or his delegated representative shall require to properly regulate the time, place and manner of emission of such amplified sound or noise.

Sec. 22-17.3. Same -- issuance or denial.

The City Manager or his delegated representative shall issue a permit for emission of amplified noise or sound unless:

(a)    The loudspeaker is to be utilized for commercial purposes. Commercial purposes as defined herein include any activity done primarily for the purpose of private profit whether such activity resulted in a profit or otherwise. Permits for such amplified sound or noise emission equipment shall be issued only if the City Manager or his delegated representative finds that its use does not unreasonably invade the privacy of, or constitute a nuisance to those who reside, work or otherwise occupy premises in reasonable proximity to the emission of amplified sound or noise or otherwise endanger the health, safety and welfare of the City or its citizens. Once such permit has been issued, it may be revoked upon a finding by the City Manager or his delegated representative that in its operation the amplified sound or noise has become a nuisance or has unreasonably invaded the privacy of those who reside, work, or otherwise occupy the premises in reasonable proximity to the emission, or the emission will in any way endanger the health, safety and welfare of the City or its citizens.

(b)    The applicant seeks to emit the amplified sound or noise other than between the hours of 9:00 a.m. and 10:00 p.m. Permits which extend the emission of amplified sound or noise outside of those hours shall be issued only if the City Manager or his delegated representative determines that such an emission will not unreasonably invade the privacy of those who reside in or otherwise occupy premises in reasonable proximity to the emission area of operation, or constitute a nuisance as to such persons.

(c)    The applicant seeks to emit the amplified sound or noise in a residential area of the City, and there is a reasonably alternative means which will not require invasion of the privacy of all of the homeowners or occupiers within such residential area. Residential area as defined here is the area so designated by the zoning ordinance of the City.

Sec. 22-17.4 Same -- revocation.

A permit hereunder may be revoked if the amplified sound or noise emission constitutes a loud and raucous noise which is offensive to those in reasonable proximity to the amplified noise or sound or which loud and raucous noise is an unreasonable invasion of the privacy of those who reside in or occupy premises contiguous to the area in which the sound or noise is emitted. A permit hereunder may also be revoked if the emission of amplified sound or noise constitutes an impediment to the safe, orderly and free flow of pedestrian or vehicular traffic on the public street or sidewalk; provided, that no permit hereunder shall be revoked until request to lower the volume of noise or sound emission to a reasonable level has been made by an appropriate public official, and such request has been refused or only partially complied with.

Sec. 22-17.5. Same -- appeal upon denial or revocation.

The City Manager or his delegated representative shall grant or deny a permit to emit amplified noise or sound within five working days of application. Revocation of a permit shall be done as soon as reasonably possible after grounds for such revocation have been discovered. Upon denial or revocation of a permit to emit amplified noise or sound, the applicant or permittee may appeal to the City Council within 14 days after such revocation or denial. Such appeal may be taken by filing with the City Clerk a written notice of appeal containing a copy of the permit application, a copy of any correspondence between the City and the applicant or permittee, and if the applicant or permittee wishes, a written statement of the position on the denial or revocation. The City Council shall hear such appeal at its earliest opportunity, whether at the next regularly scheduled meeting or otherwise. A written notice shall be given the permittee at least five days prior to the Council meeting at which the appeal is to be heard. No other notice shall be required.

Sec. 22-17.6. Same -- transfer; compliance with requirements.

No person shall emit amplified noise or sound within the City without having on his person a valid permit issued as herein specified. No permit authorized under these requirements shall be transferable or utilized by any person who has not complied with all requirements herein specified.

Sec. 22-17.7. Same -- intent of requirements.

The City Council hereby declares that it is not its intent, by the passage of these requirements to in any way infringe the rights of speech, press and assembly guaranteed by the United States Constitution. Rather, these requirements are designed to reconcile those rights with the co-equal rights of privacy in the home and the free use of the public streets.

Sec. 22-17.8. Same -- applicability of Sections 22-17 to 22-17.7.

The provisions of Sections 22-17 to 22-17.7 shall not apply to private radio sets installed in any private home for the purpose of receiving signals from regularly licensed stations or radio sets utilized for purposes of display in any store where they are sold; provided, that in none of the above situations shall the amplification be beyond the reasonable necessity of the respective uses. Nor shall the provisions of this Section apply to any governmental agency acting within the scope of its discretionary authority.

Sec. 22-18 Same -- certain noises prohibited.

No person shall cause, suffer, permit or allow the repeated or persistent emission of any noise or sound produced by any such person, by an animal or fowl or through any mechanical means within his ownership, possession or control, which by reason of its raucous nature habitually disturbs the peace and quiet of any person.

Sec. 22-18.1 Same -- oral advertising prohibited on municipal Wharf No. 1.

(a)    The use of oral advertising of any type on Municipal Wharf No. 1 is prohibited.

(b)    “oral advertising” is defined as any audible communication, vocal or recorded, amplified or unamplified or of any other type and of any noise level, which is designed to advertise or promote any business or commercial enterprise on or off such Municipal Wharf No. 1, or is designed to solicit, attract, lure or entice the public to patronage of any business or commercial enterprise conducted on or off of Municipal Wharf No. 1.

(c)    This prohibition extends to all areas of Municipal Wharf No. 1, whether or not open to the public and whether or not leased to public individuals, where such oral advertising is or would be audible in the public areas of Municipal Wharf No. 1.

(d)    The provisions of this Section shall not be construed as prohibiting businesses authorized to operate in the public areas of Municipal Wharf NO. 1 from conducting business in normal tones of voice.

(e)    Violation of this section shall constitute a misdemeanor, and shall be punished as set forth in Code Section 1-7.

Sec. 22-19. Regulation of Door-To-Door Solicitors.

No solicitor, peddler, hawker, itinerant vendor or merchant, canvasser, or transient vendor shall enter upon residential property for the purpose of soliciting orders for or selling any goods, wares, merchandise, or service, including subscriptions or orders for books, magazines, or periodicals, if a notice prohibiting soliciting or peddling is visibly displayed upon the property; and further, no such soliciting or peddling shall occur during the hours from sunset to sunrise. (Ord 3319; 4/03)

Sec. 22-20. Utility poles -- posting, etc., of signs, notices, etc.

No person shall post, paste or paint any sign or notice of any kind whatsoever on any telegraph, telephone or power line pole, standing or erected on any street in the City; provided, that this section shall not apply to notices or signs painted on such poles by the person owning the same for the purposes of warning or identification.

Sec. 22-21. Weapons and firearms -- certain acts prohibited while carrying concealed weapons.

(a)    No person while carrying concealed upon his person any dangerous or deadly weapon, shall loaf or loiter upon any public street, sidewalk or alley, or wander about from place to place, with no lawful business thereby to perform, or hide, lurk or loiter upon or about the premises of another.

(b)    No person who has concealed upon his person, or who has in his immediate physical possession, any dangerous or deadly weapon shall engage in any fight, or participate in any rough or disorderly conduct, upon any public place or way, or upon the premises of another.

(c)    No person who has concealed upon his person any dangerous or deadly weapon shall loiter about any place where intoxicating liquors are sold, or any other place of public resort.

(d)    The restrictions of this Section shall not be deemed to prohibit the carrying of ordinary tools or equipment carried in good faith for uses of honest work, trade or business, or for the purpose of legitimate recreation.

(e)    As used in this Section, but in nowise limited thereto, “dangerous or deadly weapon” shall mean any knife with a blade three inches or more in length; any spring-blade, switch-blade or snap-blade knife, or other similar type knife; any knife having a blade which is automatically released by a spring mechanism or other mechanical device; any ice pick or a similar sharp, stabbing tool; any straight edge razor, or any razor blade fitted to a handle; any cutting, stabbing, bludgeoning weapon; or any device capable of inflicting grievous bodily harm.

Sec. 22-22. Same -- sale, possession, etc., of switch-blade knives, etc.

No person shall sell, offer for sale, expose for sale, keep, carry, possess, loan, transfer or give to any other person any spring-blade, switch-blade or snap-blade knives, or similar type knives, or any knife of which the blade is automatically released by a spring mechanism or other mechanical device.

Sec. 22-23. Same -- discharge of firearms.

No person shall shoot, fire or discharge any pistol, revolver, rifle, cannon or other firearms or devices fired or discharged by explosives, or any air gun or air pistol, or spring gun or spring pistol, or any bow and arrow, not in necessary self-defense or in the performance of official duty, within the City, without first having obtained a written permit from the Chief of Police or other officer designated by him. The Chief of Police shall issue to shoot or discharge any such pistol, revolver, rifle, cannon or other firearms or devices fired or discharged by explosives, or any such air gun or air pistol, or spring gun or spring pistol, or bow and arrow, only when he finds that the proposed use thereof will not endanger life or property. The Chief of Police may issue such written permit subject to such reasonable conditions as he finds will reduce or eliminate hazard to life or property.

No person shall shoot or discharge any such pistol, revolver, rifle, cannon or other firearms or devices fired or discharged by explosives, or any air gun or air pistol, or spring gun or spring pistol, or bow and arrow, contrary to the provisions of this Section or contrary to the conditions of such written permit. The person shall have upon his person such permit when exercising the privileges granted in this Section.

Nothing contained in this Section shall apply to or prevent the firing of salutes for men of war or other steamships or sailing vessels on Monterey Bay nor to the firing of guns under the authority of the United States or of the state, nor to shooting galleries or target ranges.

Sec. 22-24. Obnoxious nude conduct -- prohibited acts.

(a)    Legislative authorization. This Section is adopted pursuant to Section 318.5 and 318.6 of the California Penal Code. All words used in this Section which are also used in such Sections 318.5 and 318.6 are used in the same sense and mean the same as the same respective words used in Sections 318.5 and 318.6 of the California Penal Code.

(b)    Prohibition against display of female breasts. Every female person is guilty of a misdemeanor who, while participating in any live act, demonstration or exhibition in any public place, place open to the public, or place open to public view or while serving food or drink or both to any customer:

1.    Exposes any portion of her breast or breasts or below the areola thereof.

2.    Employs any device or covering which is intended to simulate such portion of the breast or breasts.

3.    Wears any type of clothing so that any such portion of the breast or breasts may be seen or observed.

(c)    Prohibition against display of private parts. Every person is guilty of a misdemeanor who:

1.    Exposes his or her private parts, buttocks, genitals, pubic hair, natal cleft or perineum or employs any device which though covering such parts is intended to simulate the same while participating in any live act, demonstration or exhibition in any public place, place open to the public, or place open to public view or while serving food or drink or both to any customer.

(d)    Permitting, procuring or assisting any person in violating subsection (b) and (c).

Any person who employs, procures, permits or assists any person to engage in conduct prohibited by subsections (b) or (c) of this Section is guilty of a misdemeanor.

(e)    Exceptions. The provisions of this Section shall not apply to:

1.    A theater, concert hall or other similar establishment which is primarily devoted to theatrical performances.

2.    Any act authorized or prohibited by any statute of the State.

Sec. 22-25. Activities conducted upon quasi-public property.

Any person or persons, group, organization, corporation or other entity, or the officers, agents, employees, representatives, delegates or appointees of same which engage in the activity or activities of distribution or dissemination of ideas or information, whether for the purpose of soliciting funds, contributions, donations or otherwise, and whether in conjunction with the distribution of newspapers, magazines, leaflets, pamphlets, handbills, literature or otherwise shall do so in a manner which does not constitute an obstruction of the free flow of pedestrians or vehicular traffic within any quasi-public property, or an unreasonable interference with the lawful, normal, ordinary and efficient business operations of such property.

Quasi-public property as used herein is defined as any property which, although privately owned in whole or in part, is held open to the general public for commercial purposes and is intended to attract substantial members of the public for such purposes. Such quasi-public property shall include, but is not limited to, shopping centers, business blocks, transportation centers, including airports, railroad stations and bus terminals, wharves, stadiums, amphitheaters and other such property which is or may be used for public assemblies or other public purposes.

Obstruction of the free flow of persons and unreasonable interference with normal business operations as used herein, shall include, but is not limited to, the blockage, obstruction or impeding of entrance into or exit from any part, portion, section, or division of any quasi-public property, to include the ingress and egress to and from parking lots on such quasi-public property, the materials and vehicles on or within such property, and the violation of any state law or municipal ordinance pertaining to conduct or the regulation thereof on private, public or quasi-public property.

Sec. 22-25.5 Trespass upon Private Lands; Unwelcomed

No person shall enter or remain upon private property after having been informed by the owner, the owner’s agent, or the person in lawful possession of the property, or any police officer or City official acting at the request of the owner, the owner’s agent, or the person in lawful possession of the property, that the property is not open to the general public or that particular person. The posting of signs indicating the property is private or stating “no trespassing” shall be sufficient warning that the property is private and not open to public use, occupation, or entry, or the receipt of a written request to exclude persons from entering or remaining upon the property from the property owner, owner’s agent, or the person in lawful possession of the property by the City shall be sufficient to enable enforcement of this provision until such time as the request is rescinded.

The foregoing notwithstanding, this section shall not apply to persons lawfully on quasi-public property who are engaging in activities protected by the California or United States Constitution, unless such persons are interfering ;with or blocking ingress or egress to any premises on the property or are acting in a manner that is unsafe or disruptive to the quiet enjoyment of the property by its owner.

Sec. 22-26. Loitering in any parking facilities.

(a)    Prohibited. It shall be unlawful for any person to loiter, linger or loaf in or on any parking facility, or on the sidewalks or streets immediately adjacent thereto.

(b)    Definitions:

1.    Parking facilities. All parking lots, garages, parking structures, whether public or private, having designated spaces for the parking of five or more vehicles.

2.    Sidewalks and streets immediately adjacent thereto. All sidewalks, walkways, stairways, streets, alleys and driveways which are provided for the purpose of providing either pedestrian or vehicular ingress and egress to the parking facility.

Sec. 22-26.5. Loitering at or in Public Restrooms.

It shall be unlawful for any person to loiter at, in, or within fifty (50) feet of any public restroom, or intentionally block the ingress or egress of anyone attempting to use any public restroom. It shall further be unlawful to return to a public restroom within seventy-two (72) hours after having been asked to leave by a peace officer for loitering at, in, or about the restroom. As used in this section “loiter” means to delay, to linger, or to idle about in any City park, on City property or property otherwise designated for public use, without a lawful purpose for being present. (Ord 3322; 05/2003)

Sec. 22-27. Transit bus in revenue service -- smoking prohibited; definitions.

It shall be unlawful for any person to smoke or possess any lighted substance aboard any transit bus in revenue service within the City.

Transit bus shall mean any vehicle designed to carry 15 or more passengers, transporting the general public in urban, suburban or interurban service. Excluded are intercity passenger stage corporations regulated by the Public Utilities Commission, and charter operations which are not available to the general public.

Revenue service shall mean that period of time when the vehicle is in operation for the purpose of transportation of passengers and that period of time when parked at terminal points prior to departure.

Sec. 22-28. Same -- littering prohibited.

It shall be unlawful to place, deposit, leave or throw any refuse on any transit bus in revenue service except in designated containers within such bus.

Sec. 22-29. Regulation of smoking in public places.

(a)    Definitions. The following words and phrases, whenever used in this section, shall be construed as defined in this section:

1.    “Beach” means any sand area of a public park within the City of Monterey that abuts the Monterey Bay and extends to the Recreation Trail.

2.    “Employment” shall be defined as in California Labor Code Section 6303(b).

3.    “Enclosed” means closed in by a roof and four (4) walls with appropriate openings for ingress and egress.

4.    “Place of employment” is any place where employment is carried on.

5.    “Open to the public” means any area to which the public is invited or in which the public is permitted, including, but not limited to, common areas within hotels and motels, pharmacies, banks and other financial institutions, offices, gymnasiums, health spas, swimming pools, roller and ice rinks, bowling alleys, sports pavilions, boxing arenas, restaurants, bars, aquariums, museums, galleries and retail stores.

6.    “Recreation trail” means the paved bicycle and pedestrian path which extends from the Monterey Bay Aquarium to the City of Seaside’s limits.

7.    “Smoke” or “smoking” means possessing any lighted pipe, lighted cigar, or lighted cigarette of any kind, including, but not limited to, tobacco, any weed or plant, or any other similar combustible substance in any manner or in any form.

8.    “Service area” means any outdoor area in which one (1) or more persons are waiting for or receiving service of any kind, including, but not limited to, automatic teller machines (ATMs), ticket lines, bus stops, and boarding and waiting areas of public transit depots.

(b)    Smoking is prohibited in the following places located within the City of Monterey except as provided in subsection (c) of this section:

1.    Beaches.

2.    The Recreation Trail.

3.    Buildings. All enclosed areas of buildings which are open to the public.

4.    Covered public parking lots and parking areas, including stairwells.

5.    Buses, taxicabs, shuttles, and other means of public transportation operating in the City of Monterey.

6.    Service areas.

7.    City-owned vehicles.

8.    Where any person or entity that either owns or exercises management and control over the property and has declared the area, where smoking would otherwise be allowed, to be a nonsmoking area and posts “No Smoking” signs as described in subsection (d) of this section.

9.    Enclosed places of employment.

(c)    Exceptions. Smoking may be permitted in the following locations unless otherwise prohibited by State law:

1.    Theatrical production sites, if smoking is an integral part of the story in the theatrical production.

2.    Patient smoking areas in long-term health care facilities, as defined in California Health and Safety Code Section 1418.

3.    Medical research or treatment sites, if smoking is integral to the research and treatment being conducted.

4.    Sixty-five percent (65%) of hotel and motel guest rooms per California Labor Code Section 6404.5(d)(1).

5.    Private residences, except for those licensed as family day care homes during hours of operation and in those areas where children are present.

(d)    Posting of Signs.

1.    “No Smoking” signs shall be clearly and conspicuously posted in every building or other place where smoking is regulated by this chapter by the owner, operator, a manager or other person having control of such place where smoking is regulated by this section.

(e)    Penalties for Violation.

1.    No person shall smoke where smoking is prohibited by this section.

2.    It shall be unlawful for any person who owns, manages, operates, or otherwise controls the use of any place subject to the restrictions and regulations of this section to permit or allow smoking in violation of this section.

3.    Any person who violates subsections (b)(1) through (9) of this section shall be guilty of a misdemeanor, punishable as set forth in Section 1-7 of this code. In addition, each and every such violation shall be subject to the administrative citation process set forth in Article 2, Chapter 1, of this code.

4.    To the extent that subsection (b)(9) of this section is duplicative of Labor Code Section 6404.5, any enforcement shall be pursuant to the Labor Code. To the extent that subsection (b)(9) of this section is not duplicative of Labor Code Section 6404.5, it shall be enforced pursuant to subsection (e)(3) of this section.

5.    Any person smoking where smoking is prohibited by this section shall constitute a public nuisance.

6.    Causing, permitting, aiding, abetting, or concealing a violation of any provision of this section shall also constitute a violation. (Ord. 3442 C.S., 2010)

Sec. 22-30. Minors prohibited in billiard rooms during certain hours.

(a)    Between the hours of 8:00 p.m. and 8:00 a.m. of the following morning, no person under the age of 18 years shall enter, visit, frequent or remain in or upon any portion of a commercial premises where any game, involving the use of billiard or pool tables, billiard or pool balls and billiard or pool cue sticks is played and where liquor is sold, served or consumed on or within such portion of the premises, unless such person is accompanied by his or her parent or legal guardian. The intent of this Section is to preclude minors from being in or upon any separately definable portion of a commercial premises where billiards or pool are played, but not to preclude the minor from being in or around other portions of the premises during the prohibited hours.

(b)    The owner or operator of any such premises or portion thereof within the City shall post in a conspicuous place and at his own expense a sign stating that the presence of persons under the age of 18 years therein between the hours of 8:00 p.m. and 8:00 a.m. when not accompanied by a parent or legal guardian, is prohibited by Monterey City Code, Section 22-30.

Sec. 22-30.5 Screening of Harmful Matter.

(a)    The term “harmful matter” as set forth in Penal Code § 313 is hereby found to include any material that includes printed text on its cover or exterior that depicts or describes, either directly or by inference, sexual conduct in a patently offensive way.

(b)    No person shall display any harmful matter in any public place unless all offensive depictions or descriptions are screened from view of minors, either by devices commonly known as “blinder racks” that cover the offensive material, or by other means that effectively screen such offensive material from the view of minors. Solid cabinets accessible to adults only, separate rooms for adults only where material is not visible to minors outside this room, the sealing and covering of offensive material on covers of magazines or similar printed materials, and other similar means of effectively screening this material from the view of minors shall be acceptable in meeting this requirement. Ord 3285 11/00

Sec. 22-31. Massage therapy and massage businesses or establishments.

(a)    Purpose and Authority. It is the purpose and intent of this Section to provide that all persons engaged in the practice of Massage Therapy in the City of Monterey shall possess a valid certificate from the State of California Massage Therapy Organization, also known as the California Massage Therapy Council (hereinafter “MTC”), and to adopt regulations for all Massage Businesses and Establishments to preserve and protect the health, safety and general welfare of the residents of the City.

(b)    Definitions.

(1)    City. Means the City of Monterey.

(2)    Compensation. The term compensation means the payment, loan, advance, donation, contribution, deposit, exchange or gift of money or anything of value.

(3)    Massage Business or Establishment. The term Massage Business or Establishment means any business or establishment, including sole proprietorships, which offers Massage Therapy in exchange for compensation whether at a fixed place of business or at a location designated by the patron, the massage therapist/practitioner, or Massage Business or Establishment.

(4)    Massage Practitioner. The term Massage Practitioner is defined in California Business and Professions Code Section 4600(d) as someone who is engaged in the practice of Massage Therapy for compensation.

(5)    Massage Therapist. The term Massage Therapist is defined in California Business and Professions Code Section 4600(c) as someone who is engaged in the practice of Massage Therapy for compensation.

(6)    Massage, Massage Therapy, Bodywork. The terms “Massage,” “Massage Therapy,” and “Bodywork” are used in this Section interchangeably and shall mean the application of touch to the human body using a variety of techniques which may include any method of pressure or friction, stroking, kneading, rubbing, tapping, stretching, pounding, vibrating, or stimulating the external surfaces of the body with hands or with any object or appliance.

(7)    MTC Certificate. The term MTC certificate means a certificate issued by the MTC to Massage Therapists and Massage Practitioners.

(8)    Person. The term person means any individual, proprietorship, partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character.

(9)    Police Chief. The term Police Chief shall mean the Police Chief of the City of Monterey or his or her authorized representative(s).

(c)    Certification Required. It shall be unlawful for any person to provide Massage Therapy in exchange for compensation without first obtaining a valid MTC certificate except for the following individuals:

(1)    Any individual licensed to practice the art of healing as defined under Business and Professions Code Section 500 et seq. while engaging in a practice within the scope of their license;

(2)    Any person licensed to practice barbering or cosmetology as defined in Business and Professions Code Section 7300 et seq. while engaging in a practice within the scope of their license;

(3)    Persons who provide massage therapy to any amateur, semiprofessional or professional athlete or athletic teams so long as such persons do not practice Massage Therapy as their primary occupation within City limits;

(4)    Any employee of a California state-licensed hospital, nursing home, or other state-licensed physical or mental health facility while engaging in a practice within the scope of their employment;

(5)    Accredited high schools and colleges, and their coaches and trainers while acting within the scope of their employment; and

(6)    Schools of massage, colleges, or universities, and their students in training, provided such students provide Massage Therapy under the supervision of an instructor.

(d)    Massage Business or Establishment -- Permit Required. It shall be unlawful for any person to engage in or conduct a Massage Business or Establishment in the City for compensation without first having obtained a permit to conduct such business pursuant to this Section. Every applicant for a Massage Business or Establishment permit shall complete an application furnished by the Police Department, and pay the non-refundable application fee as determined by City Council resolution to cover the cost of the permitting activities established by this Section. The permit required hereby shall be in addition to any business license required by the Monterey City Code. The following persons are exempt from filing for permits for a Massage Business or Establishment:

(1)    Any person exempt under subsection (c) of this section;

(2)    Any person with a valid MTC certificate;

(3)    Any California state-licensed hospitals, nursing homes, or other state licensed physical or mental health facilities;

(4)    Any approved massage schools as that term is defined in Business and Professions Code Section 4600.

(e)    Massage Business or Establishment -- Permit Application Grant or Denial. The Police Department shall have a reasonable time, not to exceed 45 days, in which to make a reasonable investigation into the information provided on the application. A Massage Business or Establishment permit shall be issued within 45 days of receipt of the application to any applicant who has furnished all of the information required by this subsection unless the applicant has provided materially false information, in which case the Massage Business or Establishment license may be denied or restricted.

(f)    Massage Business or Establishment -- Permit Period of Validity. A Massage Business or Establishment permit issued under this Section is not transferable and is valid for two years from the date of issuance. Sixty days prior to the expiration of a Massage Business or Establishment permit, the permittee shall apply to renew the permit.

(g)    Massage Business or Establishment -- Suspension, Revocation, or Restriction. In accordance with Business and Professions Code Section 4612(c), in order to protect the health, safety, and welfare of the public, the Chief of Police has the authority to revoke, suspend, or restrict a Massage Business or Establishment whether such Massage Business or Establishment is permitted under subsection (d) of this section or is exempt from permitting under subsection (d)(2) of this section, after the Massage Business or Establishment has been given the opportunity for a hearing as set forth in subsection (h) of this section where any of the provisions of this Section or State law are violated on the business premises.

(h)    Hearing/Appeal. Any person who has been denied a Massage Business or Establishment permit, or any person whose privilege to conduct a Massage Business or Establishment has been suspended, revoked, or restricted, may request a hearing conducted by the City Manager’s office. The request for a hearing must be in writing and must be made within 10 calendar days from the date of the decision to deny, suspend, revoke, or restrict the permit. Upon receiving a written request for a hearing, the City Manager or his or her delegate shall call a hearing within 14 days thereafter, and shall set forth in writing and send to the applicant or permittee, by means of registered mail, certified mail, or hand delivery, notice of the date, time and place of the hearing at least five days before the hearing date. The hearing shall be conducted to determine the existence of any facts which constitute grounds for the denial, suspension, revocation, or restriction of the Massage Business or Establishment. The hearing shall be conducted by a hearing officer appointed by the City Manager. The Massage Business or Establishment may appear by counsel and shall have the right to present evidence. In the event that the Massage Business or Establishment fails to appear at the hearing, the evidence of the existence of facts which constitute grounds for the denial, suspension, revocation, or restriction of the permit shall be considered conclusively established. A copy of the decision of the hearing officer specifying the reasons for the decision shall be furnished to the Massage Business or Establishment. The decision of the hearing officer shall be final.

Notwithstanding the foregoing, the Police Chief may immediately suspend a Massage Business or Establishment without a prior hearing if he or she determines that the continued provision of massage services constitutes an immediate and significant threat to the public health, safety or welfare. In such a case, the City Manager or his or her delegate shall conduct the hearing following the suspension.

(i)    Massage Business or Establishment -- Inspections by Officials. In accordance with Business and Professions Code Section 4612(d), a Massage Business or Establishment shall be subject to reasonable inspection during regular business hours for the purpose of ensuring compliance with this Section, State law, and applicable building, fire, electrical, plumbing, or health regulations. This applies to Massage Businesses or Establishments that are permitted under subsection (d) of this section and to those Massage Businesses or Establishments that are exempt from the permitting requirements under subsection (d)(2) of this section.

(j)    Massage Business or Establishment -- General Operating Requirements. The following requirements apply to Massage Businesses or Establishments that are permitted under subsection (d) of this section and to those Massage Businesses or Establishments that are exempt from the permitting requirements under subsection (d)(2) of this section. No Massage Business or Establishment shall engage in, conduct or carry on, or permit to be engaged in, conducted or carried on, the operation of a Massage Business or Establishment unless each and all of the following requirements are met:

(1)    Business License. Massage Businesses or Establishment shall obtain a City of Monterey Business License as required by Chapter 19 of the Monterey City Code.

(2)    Hours of Operation. Massage operations shall be carried on, and the premises shall be open, only between the hours of 7:00 a.m. and 10:00 p.m.

(3)    Evidence of MTC Certificates. In accordance with Business and Professions Code Section 4612, a Massage Business or Establishment shall maintain on its premises evidence demonstrating that all persons providing Massage Therapy at such Massage Business or Establishment have obtained a valid MTC certificate for review by City authorities.

(4)    Attire. All persons engaging in Massage Therapy shall wear garments which cover the entire body, exclusive of the head, neck, arms, legs, hands and feet. The massage therapist/practitioner must be fully covered from at least the mid thigh to two inches below the collarbone. Such garments shall not be transparent and must be maintained in a clean and sanitary condition.

(5)    No Alcoholic Beverages. No person shall sell, give, dispense, provide or keep, or cause to be sold, given, dispensed, provided or kept, any alcoholic beverage on the premises of any Massage Business or Establishment.

(6)    Under the Influence. No person shall enter, be or remain in, any part of a Massage Business or Establishment while in the possession of, consuming, or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, or manager shall not permit any such person to enter or remain upon such premises.

(7)    Facilities. A minimum of one tub or shower and one toilet and wash basin shall be provided for the patrons in every Massage Business or Establishment. Hot and cold running water under pressure shall be provided to all wash basins, bathtubs, showers, and similar equipment. Each wash basin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle shall be provided in every toilet room. Every portion of a Massage Business or Establishment, including appliances and apparatus, shall be kept clean and be operated in a sanitary condition. All Massage Businesses or Establishments shall provide clean laundered sheets and towels in sufficient quantity which shall be laundered after each use, and stored in a sanitary manner. Receptacles shall be provided for the storage of used linens and paper towels.

(8)    Name of Business. No Massage Business or Establishment in the City shall operate under any name or conduct business under any designation not specified in the permit and/or business license.

(9)    Sale or Transfer. A new application shall be made upon the sale or transfer of any interest in a Massage Business or Establishment. Any permit issued for the Massage Business or Establishment prior to the sale of such business shall be null and void.

(10)    Location. The location or any change in location of a Massage Business or Establishment shall be approved by the City’s Division of Planning, Engineering, and Environmental Compliance department provided all applicable provisions of this Section are complied with and all nonrefundable fees as established by resolution of the City Council have been paid.

(k)    Operative Date -- Existing Massage Technicians. All persons licensed by the City of Monterey to practice Massage Therapy shall obtain a valid MTC certificate within 90 days of the effective date of this ordinance.

(l)    Operative Date -- Existing Massage Businesses or Establishments. All existing Massage Businesses or Establishments permitted by the City of Monterey shall comply with this ordinance within 90 days of the effective date of the ordinance codified in this section.

(m)    Penalty for Violation. Any person violating or failing to comply with any of the provisions of this Section shall be guilty of a misdemeanor. Every person who violates any provision of this Section may also be subject to administrative citations under City Code Sections 1-9 though 1-9.12, which is in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violations of this code.

(n)    Severability. If any section, subsection, sentence, clause or phrase of this Section is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Section. In addition, the City Council hereby declares that it would have passed the ordinance codified in this Chapter, and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of this Section would be subsequently declared invalid or unconstitutional. (Ord. 3437 § 1, 2009)

Sec. 22-32 Second Hand Dealers

(a)    No person, firm, corporation, partnership, or other legal entity doing business as a “second hand dealer” as that term is defined in Business and Professions Code S. 21626 shall allow any agent, employee, or other person to purchase, trade, or otherwise transfer legal ownership of any “tangible personal property” as defined in Business and Professions Code S. 21627, until and unless aid agent, employee, or other person shall first secure a permit from the Monterey Police Department.

(b)    The Police Department shall issue permits to agents and employees of second hand dealers upon completion of an application which shall include the person’s name, address, phone number, social security number, list of previous aliases, list of prior arrests, (other than traffic offenses), list of prior convictions (other than traffic offenses), and any financial interest in any pawnshop, second hand dealership, jewelry outlet, coinshop, or metal smelting/refinery operation. Said person shall also submit to having his or her fingerprints taken and allow the Police Department to conduct background and records investigations.

(c)    All second hand dealers required by Business and Professions Code S 21636 to retain tangible personal property in their possession for a period of 30 days, shall maintain such property upon the premises or within the City of Monterey. Upon a showing of hardship or good cause, any such individual may be permitted in writing by the Chief of Police to remove said tangible personal property from the city limits, but in no case shall said property be removed to location further than five (5) miles from the City of Monterey during this 30 day period.

Sec. 22-33. Prohibition in Designated Public Restrooms.

No person shall change clothes in any public restroom facility identified by the City Council as inappropriate for such activity, and which is appropriately signed.

No person shall bring any scuba diving equipment under his or her possession or control into any public restroom facility designated by the City Council as inappropriate for such equipment, and which is appropriately signed. The term scuba diving equipment shall include masks, swimfins, air tanks and regulators, weight belts, knives, wetsuits and similar equipment used for underwater diving activity. The provisions of this paragraph notwithstanding, a wetsuit worn by an individual and which is not wet, dirty, or covered with sand may be worn in restrooms while the person is utilizing the facilities in an otherwise lawful manner.

Section 22-34. Regulation of Escort Services.

I. PURPOSE; DEFINITIONS.

(a) Purpose and intent. It is the purpose and intent of this Section to provide for the orderly regulation of escort services in the City of Monterey by establishing certain minimum standards for the conduct of these types of businesses to protect the public health and welfare of the residents of the City.

(b) Definitions. Whenever used in this Section, the following words and phrases shall have the meanings respectively ascribed to them by this subsection:

1. “Escort service” means any business, agency or person who, for a fee, commission, hire, reward or profit, furnishes or offers to furnish names of persons, or who introduces, furnishes or arranges for persons, who may accompany clients or other persons to or about social affairs, entertainments or places of amusement, or who may consort with others about any public place or within any private quarters.

2. “Escort” means any person who, for a fee, commission, hire, reward or profit, accompanies other persons to or about social affairs, entertainments or places of amusement or consorts with others about any public place or within any private quarters.

3. “Permit” shall mean either a permit to operate an escort service or to engage in the activities of an escort as required by this Section.

4. A “crime of moral turpitude” is defined as a crime which infringes upon the moral sentiment of the community, as distinguished from acts prohibited by statute or other law.

(c) Exemptions: The provisions of this Section shall not apply to businesses, agencies or persons that provide escort services for older persons as defined in California Welfare and Institutions Code Section 9406, when such services are provided as part of a social welfare and health program.

(c) Renewal. Permits issued under this Section shall be valid for one year from the date of issuance, unless revoked sooner by the Chief of Police, and shall be renewed on an annual basis. The applicant shall pay a nonrefundable renewal fee in an amount established by resolution of the City Council.

(d) Non-transferability. Permits issued under this Section shall be non-transferrable. Upon the transfer of ownership or control of an escort service, the escort service permit shall immediately be null and void, and a new permit must be applied for by the new owner.

(e) Application to Existing Escort Services and Escorts. Any escort service or escort operating within the City of Monterey shall have ninety (90) days from the effective date of this Section to obtain a permit pursuant to the requirements herein.

II. ESCORT SERVICE.

(a) Permit required. It shall be unlawful for any person, association, partnership, corporation or other entity to engage in, conduct, carry on, in or upon any premises within the City of Monterey, the business of an “escort service” as herein defined, without a permit issued by the City of Monterey pursuant to the provisions of this Section. The permit required shall be in addition to any other escort permits required by this provision and any business license required by this Code.

(b) Application for Escort Service Permit - Fee. Any person, association, corporation, partnership or other entity desiring to obtain a permit to operate an escort service shall make application to the Police Chief or his or her designated representative. Prior to submitting such application, a nonrefundable fee as established by resolution of the City Council shall be paid to the City of Monterey to defray the cost of investigation required by this Section. Application for a permit does not authorize operation of an escort service until such permit has been granted.

(c) Application for Escort Service Permit - Contents. Each application for an Escort Service Permit shall be submitted on a form furnished by the Police Department, furnishing the following information and including the accompanying data required:

1. The full, true name and any other names used by the applicant and all owners of the business, and their present addresses and telephone numbers;

2. The previous addresses of the applicant and all owners of the business, for a period of five (5) years immediately prior to the date of the application and the dates of residence of each;

3. Acceptable written proof that the applicant and all owners of the business are at least eighteen (18) years of age;

4. The business, occupation or employment history of the applicant and all owners for the five (5) years immediately preceding the date of application;

5. The criminal record, if any, of the applicant and all owners of the business, showing any and all convictions of the offenses listed in Section 22-34(II)(e)(5);

6. A detailed description of the proposed business, including the name of the business, the types of services to be provided, the hours of operation, whether the proposed business will operate as a home occupation, and whether other services, including but not limited to massage services, will be provided;

7. The names and dates of birth of all persons currently employed or intended to be employed by the escort service, regardless of the nature of the employment and including independent contractors, along with the proposed or actual nature of the work performed or to be performed. “Employee” includes every owner, partner, manager, supervisor and worker, whether paid or not, who renders personal services of any nature in the operation of an escort service;

8. Whether the applicant or any owners of the proposed establishment intend to personally act as escorts;

9. Such other identification and information as the Police Department may require, such as fingerprints and or photographs of the applicant, in order to discover the truth of the matters hereinbefore specified as required to be set forth in the application; and

10. A statement in writing by the applicant certifying under penalty of perjury that the foregoing information contained in the application is true and correct, and specifically authorizing the City, its agents and employees to seek information to verify the truth of the statements set forth in the application and the qualifications of the applicant for the permit. Applicant shall sign the application under penalty of perjury and in the presence of a Monterey Police Department staff member.

(d) Applicant to appear. The applicant, if an individual, or designated responsible managing officer, if a partnership or corporation, shall personally appear at the Police Department of the City of Monterey to present the application containing the aforementioned and described information, to produce proof that the application fee has been paid, and to sign the application under penalty of perjury.

(e) Investigation - Issuance of permit. Upon the receipt of the completed application for Escort Service Permit, the Police Chief shall have sixty (60) days to investigate the application and the background of the applicant, and owners including, but not limited to, any past criminal convictions as provided by the Department of Justice or other legally authorized agency. Upon completion of the investigation, the Police Chief may grant the permit, or may deny the permit if he finds lack of compliance with any of the following:

1. The required fee has been paid;

2. The applicant conforms in all respects to the provisions of subsection (c) above;

3. The applicant has not made any false, misleading or fraudulent statements in the application;

4. The applicant has fully cooperated in the investigation of his or her application;

5. The applicant, if an individual, or any officers, directors, or shareholders of the corporation holding more than five percent (5%) of the stock, if the applicant is a corporation, or any of the partners, including limited partners, if the applicant is a partnership, have not within the last ten (10) years been convicted in a court of competent jurisdiction of:

A. An offense involving conduct which requires registration under California Penal Code section 290;

B. Any offense in violation of Penal Code sections 266, 314, 315, 316, 318, 647(a), 647(b) or 647(h);

C. An offense involving violation of California Health and Safety Code Sections 11351 through 11354, 11358 through 11363, 11378 through 11380, or involving the sale of a controlled substance specified in sections 11054, 11055, 11056, 11057, or 11058 of the California Health & Safety Code;

D. Abatement proceedings under the California Red Light Abatement Act (Penal Code sections 11225 through 11325);

E. Any offense involving lewd conduct, the use of force or violence upon another person, fraud, deceit, or moral turpitude;

F. An attempt to commit or conspiracy to commit any of the above mentioned offenses; or

G. Conviction in any state of an offense which, if committed or attempted in this state, would have been punishable as one or more of the above-mentioned offenses.

6. The escort service business, as proposed by applicant, would comply with all applicable laws, including but not limited to zoning, fire and safety requirements and standards;

7. The applicant and all owners are at least eighteen (18) years of age;

8. The applicant has not engaged in conduct which would constitute grounds for suspension or revocation under this Section.

(f) Temporary permit. If relevant Department of Justice state summary criminal history information is not received within the sixty-day (60) investigation period, the Police Chief is authorized to issue a temporary permit, valid for a ninety-day (90) period. A final decision granting or denying a permit shall be made after receipt of such summary criminal history information. If the permit is granted, its effective date shall be the date of issuance of the temporary permit. If the permit is denied, the temporary permit shall expire upon notice of the denial.

(g) Denial of permit application - Appeal. If the Police Chief, following investigation of the applicant, finds that the applicant does not fulfill the requirements set forth herein, he shall deny the application and notify the applicant by first-class mail of such denial. Any applicant who is denied a permit by the Police Chief may appeal such denial to the City Manager, pursuant to the provisions of section 22-34(V)(d)(2)-(5) herein.

(h) Escort Permit required. Possession of a valid escort service permit does not authorize the holder thereof to personally perform work for which an escort permit is required.

III. ESCORTS.

(a) Permit required. It shall be unlawful for any person to engage in the business of acting or to act as an escort, as defined herein, without a valid Escort Permit issued pursuant to the provisions set forth below. The Escort Permit shall be in addition to any Escort Service Permit or any business license which may be required by law.

(b) Application for Escort Permit - Fee. Any person desiring to obtain a permit to act as an escort shall make application to the Police Chief or his or her designated representative. Prior to submitting application, a nonrefundable fee as established by resolution of the City Council shall be paid to the City of Monterey to defray the cost of investigation required by this Section. Submission of an application for a permit does not authorize the applicant to act as an escort until a permit has been granted.

(c) Application for Escort Permit - Contents. Each escort permit application shall be submitted on a form furnished by the Police Department and shall set forth the following information to include the accompanying data required:

1. The full, true name and any other names used by the applicant;

2. The present address and telephone number, as well as the previous addresses of the applicant for a period of five (5) years immediately prior to the date of application and the dates of residence of each;

3. The name and address of the escort service and name of the owners of the escort service where applicant is to be employed, if any;

4. The birth certificate of applicant or other acceptable written proof that applicant is at least eighteen (18) years of age;

5. The applicant’s height, weight, color of eyes and hair and date and place of birth;

6. Two photographs at least 2" X 2" taken within the last six (6) months, together with a complete set of fingerprints taken by the Chief of Police or his or her agent;

7. The criminal record, if any, of applicant, showing any and all convictions of the offenses listed in Section 22-34(II)(e)(5);

8. Such other identification and information as the Police Department may require in order to discover the truth of the matters hereinbefore specified as required to be set forth in the application; and

9. A statement in writing by the applicant signed under penalty of perjury that the foregoing information contained in the application is true and correct, and specifically authorizing the City, its agents and employees to seek information to verify the truth of the statements set forth in the application and the qualifications of the applicant for the permit. Applicant shall sign the application under penalty of perjury and in the presence of a Monterey Police Department staff member.

(d) Applicant to appear. The applicant for an Escort Permit shall personally appear at the Police Department of the City of Monterey to produce proof that the application fee as set by resolution of the City Council has been paid, present the application containing the aforementioned and described information, and sign the application under penalty of perjury.

(e) Investigation - Issuance of permit. The Police Chief shall have sixty (60) days to investigate the application and the background of the applicant. Upon completion of the investigation, the Police Chief may grant the permit, or may deny issuance of the permit if he or she finds lack of compliance with any of the following:

1. The required fee has been paid;

2. Applicant conforms in all respects to the provisions of subsection (c) above;

3. Applicant has not made any false, misleading or fraudulent statements in the application;

4. Applicant has fully cooperated in the investigation of his or her application;

5. Applicant has not been convicted in a court of competent jurisdiction within the last ten (10) years of the violations set forth in section 22-34(II)(e)(5) herein;

6. Applicant is at least 18 years of age;

7. Applicant has not engaged in conduct which would constitute grounds for suspension or revocation under this Section.

(f) Temporary permit. If relevant Department of Justice state summary criminal history information is not received within the sixty-day (60) investigation period, the Police Chief is authorized to issue a temporary Escort Permit, valid for a ninety-day (90) period. A final decision granting or denying a permit shall be made after receipt of such summary criminal history information. If the permit is granted, its effective date shall be the date of issuance of the temporary permit. If the permit is denied, the temporary permit shall expire upon notice of the denial.

(g) Escort Permit - Denial - Appeal. If the Police Chief, following investigation of the applicant, finds that the applicant does not fulfill the requirements set forth above, he or she shall deny the application and notify the applicant by first-class mail of such denial. Any applicant who is denied a permit by the Police Chief may appeal such denial pursuant to the provisions of section 22-34(V)(d)(2)-(5) herein.

IV. PROHIBITED CONDUCT.

The following regulations shall apply to all escort services and escorts permitted under this Section.

(a) Age of customer. It shall be unlawful for any escort service or escort to allow any person under the age of 18 years to patronize an escort service as a customer or patron.

(b) Nudity prohibited. It shall be unlawful for any escort or client of an escort, or for any escort service to allow or permit its employees or clients, to be nude, semi-nude, dressed in lingerie or be other than fully clothed at all times when performing or utilizing escort services. Clothing shall be fully non-transparent and provide complete covering of the genitals, pubic area, buttocks and chest.

(c) Massage Establishment Permit and/or Massage Practitioner Permit Required. Any escort service or escort who performs or offers massage as part of their escort services shall obtain a Massage Establishment Permit and/or Massage Practitioner Permit, as appropriate, pursuant to the provisions of Monterey City Code section 22-31.

V. FAILURE TO COMPLY.

(a) Escort service responsibility. No permittee, owner, operator or manager of an escort service shall allow or permit any agent, employee, or other person under his or her control or supervision to perform any acts prohibited, or to fail to perform any acts required, by this Section. Any such performance or failure to perform shall be subject to the provisions set forth below.

(b) Violations - Misdemeanors. Violation of any provisions of this Section shall constitute a misdemeanor and may be prosecuted criminally as set forth in Monterey City Code section 1-7.

(c) Violations - Public nuisance. Any escort service or escort operating contrary to the provisions of this Section shall be, and the same is hereby declared to be, unlawful and a public nuisance. The City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action for abatement, removal or enjoinment thereof, in the manner provided by law or as set forth in Monterey City Code section 1-7.

(d) Violations - Suspension or revocation of permit.

1. Basis for suspension or revocation. The Police Chief may suspend or revoke an Escort Service Permit or Escort Permit if he or she finds that a permittee has:

A. Knowingly made any false, misleading, or fraudulent statements in their permit application or application for renewal of same;

B. Violated any provision of this Section or any other ordinance, law or statute relating to or regulating permittee’s permitted activity; or

C. Been convicted of or arrested for violation of any of the offenses listed in section 22-34(II)(e)(5) herein.

The permittee shall be provided written notice by first class mail, postage prepaid, of such suspension or revocation.

2. Appeal to City Manager. The permittee may file an appeal with the City Manager’s Office within fifteen (15) days of the date of the mailing of the notice of suspension or revocation. In the event an appeal is timely filed, the suspension or revocation shall not take effect until a final decision has been rendered by the City Manager, or his or her designee. If no appeal is timely filed, the denial, suspension or revocation shall become effective upon expiration of the period for filing appeals.

3. Hearing before City Manager. The City Manager, or designee, shall schedule a hearing to be held within fifteen (15) days after the filing of the notice of appeal. Notice of the date, time and place of the hearing shall be mailed, postage prepaid, at least ten (10) days prior thereto to the appellant.

The City Manager, or designee, shall conduct an informal hearing on the appeal. Formal rules regarding evidence and witnesses shall not apply. Appellant may have legal counsel and both parties shall have the right to present evidence and call witnesses; however, parties are encouraged to submit as much evidence as is possible by way of written briefs and declarations. In the event that the appellant fails to appear at the hearing, the existence of facts which constitute grounds for revocation or suspension of the permit shall be considered conclusively established. A copy of the decision of the hearing officer specifying the reasons for the decision shall be furnished to the appellant.

4. Appeal to the City Council. The permittee may file an appeal to the City Council with the City Clerk’s Office within fifteen (15) days of the date of the mailing of the decision of the City Manager or designee. In the event an appeal is timely filed, the suspension or revocation shall not take effect until a final decision has been rendered by the City Council. If no appeal is timely filed, the suspension or revocation shall become effective upon expiration of the period for filing appeals.

5. Hearing before City Council. The City Clerk shall schedule a hearing before the City Council to be held within forty-five (45) days of the filing of the notice of appeal. The City Clerk shall provide notice of the hearing to the appellant, which shall include the date, time and place of the hearing. Once commenced, the hearing may be continued until it can be completed.

Formal rules regarding evidence and witnesses shall not apply at the hearing. Appellant may have legal counsel and both parties shall have the right to present evidence and call witnesses; however, parties are encouraged to submit as much evidence as is possible by way of written briefs and declarations. The City Council shall have the authority to rule on admissibility of evidence.

The City Council shall determine, after consideration of all evidence presented, whether a permit should be reinstated, suspended or revoked. The decision of the City Council shall be final.

ARTICLE 2
GRAFFITI

Sec. 22-35 Findings.

The Monterey City Council finds that the presence of graffiti on public and private property within the City can cause the aesthetic deterioration of neighborhoods and commercial areas, creates blight and, if not promptly abated, may lead to further placement of graffiti and the aesthetic deterioration of areas within the City of Monterey. The purpose of this ordinance is to establish rules and procedures for graffiti removal and to address the costs of such removal.

Sec. 22-35.1 Graffiti Defined.

As used in this chapter, graffiti means any unauthorized form of painting, scratching, writing or inscription, regardless of the content or nature of the material used, which is placed upon any private structure, fixture, sign, sidewalk, or other real or personal property in any location where it can be viewed from any public street, bay, walkway, building, park, facility, or any other public property, or upon any public structure, fixture, sign, sidewalk, or other real or personal property, and which is without the authorization of the owner or any other person in control of the property.

Sec. 22-35.2 Graffiti Declared a Nuisance.

Graffiti is hereby determined to be a nuisance because its continued existence constitutes a visual blight upon the area in which it is located.

Sec. 22-35.3 Placement of Graffiti Prohibited.

It shall be unlawful to place any graffiti within the City of Monterey.

Sec. 22-35.4 Graffiti Prohibited.

It shall be unlawful for any person owning or otherwise in control of any real or personal property within the City of Monterey to permit or allow any graffiti to remain on such property.

Sec. 22-35.5 Notice to Property Owner to Abate Graffiti.

(a)    Because prompt removal is the greatest disincentive to graffiti and minimizes the blight created by graffiti, the City may utilize the removal procedures set forth in this Article whenever graffiti is discovered on private property.

(b)    The Deputy City Manager of Plans and Public Works shall give notice to the owner of the property on which graffiti exists that, unless the graffiti is satisfactorily removed within five (5) days by cleaning or painting over the graffiti, removal shall be done by the City upon consent of the owner, or if such consent is not granted, upon City’s acquisition of jurisdiction to enter the subject property to abate the graffiti. The notice shall further state that City’s costs related to such removal may be assessed upon the property from which the graffiti has been removed.

(c)    The notice shall be given by delivery of a written notice personally to the owner(s) of the property upon which the graffiti is located, or by posting the notice in a conspicuous place upon the building or property and depositing a copy of such notice in the United States mail, postage prepaid, and addressed to the owner(s) thereof at the owner(s) last known address as the same appears on the last equalized assessment roll of the County of Monterey. In the event a notice to remove is also given to the person(s) in possession or control of the property, such notice shall be given in either manner specified in this subsection with respect to giving notice to the owner of the property, and may be addressed to “occupant” or “to whom it may concern,” if the name of such person(s) is not known.

(d)    The notice shall be substantially in the following form:

“NOTICE OF INTENT TO REMOVE OR CONSENT TO REMOVE GRAFFITI

Date: ______________________

NOTICE IS HEREBY GIVEN that you are required by law at your expense to remove or paint over the graffiti located on the property commonly known as _________________________, in Monterey, California, which is visible to public view, within five (5) days after the date of this notice. As an alternative, you may provide written consent to authorize City employees or a private contractor hired by the City to enter upon your property and remove the graffiti with the cost of such removal assessed upon you. A consent form and waiver of liability form is attached and must be returned within five (5) days after the date of this notice. If you fail to remove the graffiti or return the signed consent and waiver of liability form within the specified time, the City shall declare the graffiti on your property to be public nuisance pursuant to Section 22-35.2 of the Monterey City Code and may acquire jurisdiction to enter your property to remove the graffiti, with all costs of City’s removal of the graffiti, including administrative costs, imposed on you. Costs of removal of the graffiti may also be enforced as a personal obligation against you or as a lien or special assessment against your property.

You may appeal this Notice to Abate Graffiti by submitting an appeal form, along with an appeal fee, to the Monterey City Clerk within five (5) days of the date of this notice. Following timely appeal of the Notice, the City Clerk shall set the matter for public hearing before the City Council pursuant to the provisions of Monterey City Code Section 22-35.6.”

(Ord. 3424 § 1, 2009)

Sec. 22-35.6 Appeal of Notice to Remove Graffiti - Hearing by City Council.

(a)    A property owner may appeal the Notice to Abate Graffiti by submitting an appeal form, along with an appeal fee in an amount to be established by resolution, to the Monterey City Clerk. The request for appeal must be made within five (5) days of the date of the Notice to Remove Graffiti.

(b)    Following timely appeal of the notice, the City Clerk shall set the matter for public hearing before the City Council and shall give notice to the property owner of the hearing on the matter. The City Council shall render its decision based upon the provisions of this section and upon oral and written evidence presented at the hearing.

(c)    Any decision by the City Council ordering the property owner to remove graffiti shall state that failure to comply with the Council’s order may result in City obtaining jurisdiction to enter the property and remove the graffiti in accordance with Section 22-35.7 herein and may include an order imposing all costs of City’s removal of the graffiti, including administrative costs, on the property owner. The decision shall also state that failure to comply with the Council’s order to remove graffiti may be enforced as a personal obligation against the property owner, or as a lien or special assessment against the property as provided in Sections 22-35.9 herein.

(d)    Failure to timely appeal the notice to remove graffiti as set forth in this Section shall constitute a failure to exhaust administrative remedies and no further appeal rights shall be granted.

Sec. 22-35.7 Removal by City.

(a)    If the Deputy City Manager of Plans and Public Works determines that graffiti constitutes a nuisance in violation of Section 22-35.4 and the Director has been unable to obtain the owner’s consent to remove the graffiti within five (5) days of giving notice hereof as provided in Section 22-35.5 herein, or in the event of an appeal under Section 22-35.6, within five (5) days of the decision of the City Council ordering property owner to remove the graffiti, then the City shall acquire jurisdiction to abate the nuisance. Following acquisition of jurisdiction, City or a contractor designated by the Deputy City Manager of Plans and Public Works shall enter upon the private property on which the nuisance exists for the purpose of abating the nuisance.

(b)    The City Council recognizes that the paint used in such abatement efforts by City may not closely match the existing paint; however, the City Council finds that the abatement will not damage private property more than the damage that has already resulted from the graffiti. The abatement authorized by this section shall not, without property owner permission, extend to areas not readily visible to the general public. (Ord. 3424 § 1, 2009)

Sec. 22-35.8 Cost of Abatement.

Within 30 days after abatement of the graffiti by City, the Deputy City Manager of Plans and Public Works may notify the owner of the property, pursuant to the notice provisions set forth in Section 22-35.5(c) herein, of the cost of the abatement, which cost shall include the total cost of abatement and all administrative expenses incurred by the City. (Ord. 3424 § 1, 2009)

Sec. 22-35.9 Lien/Special Assessment

If such costs are not paid within ninety days of the date of notification of the cost of abatement and/or the determination of the City Council under Section 22-35.6 has not been successfully challenged by a timely writ of mandate, the obligation may constitute a lien or, in the alternative, a special assessment against the property on which the violation occurred.

The lien or special assessment shall be imposed as provided in Article 3 of Chapter 1 of the Monterey City Code, Sections 1-12 through 1-12.3 inclusive.

Sec. 22-35.10 Waiver of Cost of Abatement

Notwithstanding the provisions of sections 22-35.8 and 22-35.9 above, the City may use its own funds to remove graffiti from publicly or privately owned real or personal property, or to repair or replace property that has been defaced with graffiti or other inscribed material that cannot be removed cost effectively. This section shall not authorize the use of City funds to paint, repair or replace other parts of property not defaced by graffiti. This section is based on the findings set forth in Section 22-35 herein, and on the provisions of California Government Code section 53069.3 allowing use of public funds for graffiti eradication.

Sec. 22-35.11 Graffiti Eradication Program.

The City Manager, or his designee, is authorized to establish a graffiti eradication program within the City which may, but is not required to, include: proactive enforcement to identify, apprehend and prosecute persons who have placed graffiti on the real or personal property of another; establishment of procedures to pursue restitution of graffiti eradication costs from responsible parties; establishment of a preventive education program within local schools to prevent graffiti; establishment of an offender education program with the intent of diverting those apprehended for graffiti related offenses; establishment of a “graffiti hotline” to be used by the community to report real or personal property which has been defaced with graffiti; and the coordination and maintenance of a graffiti wipe-out program which utilizes available resources and enlists citizen volunteers and those who are responsible for community service as an imposition of sentence or condition of probation with the goal to expedite the cleaning of graffiti from real or personal property within the City.

Sec. 22-35.12 Penalty for Placement of Graffiti.

a)    Any person found to have placed graffiti in violation of Section 22-35.3 herein shall be charged with a misdemeanor and upon conviction thereof, shall be punishable pursuant to the provisions of Section 1-7 of the Monterey City Code.

b)    If a minor is personally unable to pay a criminal fine levied for violating this Article, the parent or legal guardian of the minor shall be liable for payment of the fine. A court may waive payment of the fine by the parent or legal guardian upon a finding of good cause.

(c)    Any individual found guilty of a violation of this section shall reimburse the City of Monterey for any and all costs the City may incur in removing the graffiti. Such reimbursement shall be in addition to any other penalties imposed by the court pursuant to this section. If the violator is a minor, the parent or guardian shall also be responsible for such reimbursement.

Sec. 22-35.13 Restitution.

In addition to any other penalties and as restitution for violation of Section 22-35.3, a violator may be required to pay the person owning or otherwise in control of any real property of the City, as the case may be, for the costs of repairing any damages to property caused by that violator’s unlawful conduct. When the violator is a person under eighteen (18) years of age, any parent, guardian, or other person legal custody of the violator and who fails or neglects to exercise reasonable supervision and control of the conduct of the violator shall be liable in a civil action for damages caused by the violator.

ARTICLE 3 (Ord 3369; 04/2006)
SMOKING REGULATIONS
(Repealed by Ord. 3442 C.S.)

ARTICLE 4 (Ord 3390; 08/07)
ABATEMENT OF PUBLIC NUISANCES

§ 22-38    General Definitions

§ 22-38.1    Public Nuisances Prohibited

§ 22-38.2    Nuisances Defined

§ 22-38.3    Remedies for Public Nuisance

§ 22-38.4    Administrative Order

§ 22-38.5    Summary Abatement

Sec. 22-38 General Definitions.

For the purposes of this Article, the following definitions shall apply:

(a)    “Enforcement Officer” shall mean any City employee or agent of the City granted the authority by the City Manager to enforce any provision of this Code, including, but not limited to, the Code Enforcement Officer, Fire Prevention Officer, Animal Control Officer, and any Police Officer.

(b)    “Abate” means to repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such manner and to such an extent as the enforcement officer in his or her judgment determines is necessary in the interest of the public health, safety and welfare.

(c)    “Premises” means any building, lot, parcel, real estate, or land or portion of land whether improved or unimproved, including adjacent sidewalks and parking strips.

Sec. 22-38.1 Public Nuisances Prohibited.

No person shall have upon any premises or real property owned, occupied or controlled by him or her, any public nuisance as defined in this Article or anywhere else in this Code. Whenever an enforcement officer determines that any of such conditions exist upon any premises, he or she may require or provide for the abatement thereof pursuant to this Article.

Sec. 22-38.2 Nuisances Defined.

The following conditions are hereby defined as and declared to be a public nuisance:

(a)    Any accumulation of filth, garbage, waste paper, litter, rubble, rubbish, combustible trash, unsanitary debris or waste material or decaying animal or vegetable matter upon any public or private property unless contained in a proper trash receptacle in compliance with Chapter 14 of this Code;

(b)    The existence of any dead, diseased, infested, or dying tree in any street; or on any private property so near to any street tree as to constitute a danger to street trees, or streets, or portions thereof, so as to be a danger to the public safety;

(c)    The existence of any tree or shrub on any private property or in any street, of a type or species apt to destroy, impair or otherwise interfere with any street improvements, sidewalks, curbs, approved street trees, gutters, sewers, other public improvements, including utility mains or services;

(d)    The existence within the thirty-five foot triangle of property at the intersection of streets improved for vehicular traffic, of any tree limb, shrub, hedge, or plant exceeding three feet in height where either traffic signals, stop signs, or yield signs are not installed, or at any intersections which are determined by the chief transportation official to contain tree limbs, shrubs, hedges, or plants that obscure and impair the view of passing motorists or pedestrians so as to create a safety hazard;

(e)    The existence of any branches or foliage which interfere with visibility on, or free use of, or access to, or obstruct public vehicular or pedestrian travel on any portion of any street improved for vehicular or pedestrian travel, including a sidewalk;

(f)    Any buildings, structures, or portion thereof found to be unsanitary;

(g)    Any matter or material which constitutes, or is contaminated by, animal or human excrement, urine or other biological fluids;

(h)    Any visible or otherwise demonstrable growth of mold or mildew in the interiors of any buildings or facilities;

(i)    Any pest harborage or infestation including but not limited to rats, pigeons, skunks, raccoons, opossums, or snakes;

(j)    Any noxious insect harborage or infestation including, but not limited to cockroaches, fleas, scabies, lice, spiders or other arachnids, houseflies, wasps or mosquitoes;

(k)    The existence of any act or condition that presents a fire, panic, or life safety hazard, or would contribute to the rapid spread of fire or inhibit mitigation or increase the chance of release of hazardous material, or would interfere with, hinder or delay the egress of occupants or response of emergency personnel;

(l)    The storage or keeping of any used or unused building material, including but not limited to lumber, plumbing materials, wallboard, sheet metal, plaster, brick, cement, concrete block, roofing materials, cans of paint and similar materials, in a location out of doors for more than thirty days within a year; provided, that nothing in this subsection shall:

1.    Prohibit such storage upon the premises of a bona fide lumberyard or other dealer in building materials when the same is permitted under the Zoning Code and other applicable laws;

2.    Prohibit such storage when done in conjunction with a construction project for which a valid building permit is in effect if required and which is being prosecuted diligently to completion.

(m)    The storage, or keeping in a location out of doors, any unused and abandoned open pit or excavation, building foundation, automobile, trailer, or other vehicle or major parts thereof, or indoor furniture. Without limiting the foregoing, any such item stored or kept for a period in excess of thirty days in a year shall be presumed to be unused and abandoned for purposes of this provision;

(n)    The existence of any fence or other structure or thing on private property abutting or fronting upon any public street, sidewalk or place, which is in a sagging, leaning, fallen, decayed or other dilapidated or unsafe condition;

(o)    Any other condition of property defined as a nuisance or public nuisance by any other section of this Code;

(p)    Any other condition on or use of property which is in fact a menace to the public peace, health, or safety;

(q)    Any violation of any Uniform Code or City amendment thereto.

Sec. 22-38.3 Remedies for Public Nuisance.

Public nuisances under this Article may be remedied using the procedures set forth in Article 2 of Chapter 1 of the Monterey City Code, known as the Administrative Remedies Ordinance. These remedies include issuance of Administrative Citations (Monterey City Code section 1-9 et seq.) and utilization of the Administrative Orders process (Monterey City Code section 1-10 et seq.). These remedies shall be in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any public nuisance.

Sec. 22-38.4 Administrative Order

Imposition of an Administrative Order by the Administrative Appeals Hearing Board pursuant to Monterey City Code Sections 1-10 et seq. may result in any or all of the following:

1.    An order to abate the nuisance, including a schedule for correction where appropriate;

2.    Imposition of administrative penalties;

3.    Imposition of administrative costs;

4.    Interest on such penalties and costs at the legal rate;

5.    Abatement of said nuisance by City with the full cost of abatement plus all administrative costs charged to the property owner;

6.    Enforcement of any unpaid administrative costs, penalties and interest, or any unpaid nuisance abatement costs incurred by City, as a personal obligation of the property owner;

7.    Imposition of a lien or special assessment against the property for any unpaid administrative costs, penalties and interest, or for any unpaid nuisance abatement costs incurred by City. Such lien or special assessment shall be imposed as provided in Monterey City Code sections 1-12 through 1-12.3 inclusive.

Sec. 22-38.5 Summary Abatement.

(a)    The City may, forthwith and without notice or prior order of the City Council or Administrative Appeals Hearing Board, abate the following nuisances:

1.    Any nuisance defined by statute, ordinance or resolution as a public nuisance which constitutes an immediate danger to persons or property; or

2.    A nuisance defined by statute, ordinance or resolution as a public nuisance which is located and maintained on public property, including but not limited to any street, highway, easement, park or building.

(b)    No notice need be given to any property owner or to the person or persons who created, caused, committed or maintained said nuisance prior to the City acquiring jurisdiction to enter the property and abate the nuisance. Following acquisition of jurisdiction, City or a contractor designated by City shall enter upon the private property for the purpose of abating the nuisance. All costs, including administrative costs, of such abatement shall be imposed on the property owner or person responsible for such nuisance, and may be enforced as a personal obligation, or as a lien or special assessment against the property as set forth in Monterey City Code section 1-12 et seq. herein.

Sec. 22-39 Prohibiting Medical Marijuana Dispensaries, Marijuana Dispensaries and Marijuana Sales. Revised 10/11

(a)    Medical Marijuana Dispensaries Prohibited. Medical marijuana dispensaries are prohibited in the City of Monterey. No person shall locate, operate, own, suffer, allow to be operated or aid, abet, lease to or assist in the operation of any fixed or mobile medical marijuana dispensary within the City in any zone. The operation of a medical marijuana dispensary in the City of Monterey shall constitute a public nuisance.

“Medical marijuana dispensary” is defined as any facility, clinic, cooperative, club, business, group or location, whether fixed or mobile, where medical marijuana is made available to, exchanged, sold, or distributed to a qualified patient, a person with an identification card, and/or a primary caregiver as defined by State law. A medical marijuana dispensary shall not include the following uses, as long as the location of such use is otherwise in accordance with this code and other applicable law:

1.    A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code.

2.    A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code.

3.    A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code.

4.    A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code.

5.    A hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code Section 11362.5 et seq.

(b)     Marijuana Dispensaries Prohibited. Marijuana dispensaries are prohibited in the City of Monterey. No person shall locate, operate, own, suffer, allow to be operated or aid, abet or assist in the operation of any fixed or mobile marijuana dispensary within the City in any zone. The operation of a marijuana dispensary in the City of Monterey shall constitute a public nuisance.

“Marijuana dispensary” is defined as any facility, clinic, cooperative, club, business, group or location, whether fixed or mobile, where marijuana is made available to, sold, exchanged, or distributed to any person. A marijuana dispensary shall not include the following uses, as long as the location of such use is otherwise in accordance with this code and other applicable law:

1.    A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code.

2.    A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code.

3.    A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code.

4.    A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code.

5.    A hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code Section 11362.5 et seq.

(c)    Marijuana Sales Prohibited.

1.    No person shall grow, sell, exchange, or distribute marijuana within the City in any zone, or engage in any operation for this purpose.

2.    No person shall make, sell or distribute any marijuana-infused product such as tinctures, baked goods or other consumable products, or participate in any operation for this purpose.

3.    This section shall not limit cultivation in strict compliance with the Compassionate Use Act, codified at California Health and Safety Code Section 11362.5. (Ord. 3465, 2011)