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Ordinance Guide - Graffiti

Graffiti (Abatement of Unauthorized Visual Blight)


ARTICLE XIV. ABATEMENT OF UNAUTHORIZED VISUAL BLIGHT*

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*Editor's note: Ord. No. 06-1055, § 1, amended Art. XIV in its entirety to read as herein set out. Section 4 of said ordinance states that the various former ordinance provisions that are amended in Section 1 of this Ordinance are saved from repeal for the limited purpose of their continuing application to any violation committed before the effective date of this Ordinance, as applicable. For this purpose, a violation is deemed to have been committed before the effective date of this Ordinance, as applicable, if any element of the offense was committed prior to the effective date of this Ordinance, as applicable.

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Sec. 10-541. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates a different meaning:
Graffiti implement means an aerosol paint container, a permanent broad-tipped marker, a gum label, a paint stick, a graffiti stick, a graffiti cap, any etching equipment, a brush or any other device capable of scarring or leaving a visible mark on any natural or manmade surface.
Minor means any person under 17 years of age.
Owner means the record owner of the lot or parcel or other person specifically authorized in writing by the record owner to authorize the placement of any painting, scratching, writing or inscription upon the owner's property.
Paint stick means a solid form of paint capable of leaving a mark of at least 1/4-inch in width.
Permanent broad-tipped marker means any marker, pen, or similar implement, which contains a fluid that is not water soluble and that has a tip, point, brush, applicator or other writing surface which, at its broadest, is 1/4-inch or greater in width.
Unauthorized means without the consent of the owner or without authority of law, regulation or ordinance. Unless the owner proves otherwise, lack of consent will be presumed under circumstances tending to show (i) the absence of evidence of specific authorization of the visual blight by the owner, (ii) that the visual blight is inconsistent with the design and use of the subject property, or (iii) that the person causing the visual blight was unknown to the owner.
Visual blight means any unauthorized graffiti or any other unauthorized form of painting, scratching, writing or inscription, including without limitation, initials, slogans or drawings, regardless of the content or nature of the material that has been applied to any wall, building, fence, sign, or other structure or surface and is visible from any public property or right-of-way or is visible from the private property of another person. (Ord. No. 94-1163, § 2, 11-2-94; Ord. No. 06-1055, § 1, 10-18-06)

Sec. 10-542. Declaration; notice.
Visual blight is declared to be a public nuisance. whenever the neighborhood protection official becomes aware of the existence of visual blight on any lot or parcel of real estate in the city, the neighborhood protection official shall provide the property owner with written notice identifying the visual blight and directing its abatement. The notice shall be sent in accordance with article XI of this chapter; however, the time allowed for abatement of the nuisance shall not be less than ten business days. The notice shall further state that the owner may request a hearing as described in section 10-543 of this Code.
(Ord. No. 94-1163, § 2, 11-2-94; Ord. No. 98-613, § 47, 8-5-98; Ord. No. 06-1055, § 1, 10-18-06)

Sec. 10-543. Hearing.
The owner of a lot or parcel subject to abatement under this article may request a hearing by notifying the neighborhood protection official within ten days following the date the city mails or delivers the required notice. The hearing shall be conducted by a hearing official designated by the chief of police for the purpose of determining whether the conditions constitute a public nuisance under the provisions of this article. Unless notice is waived by the owner, the owner shall be provided written notice of the time and place of the hearing at least ten days prior thereto. At the hearing, the owner and the neighborhood protection official may present any evidence relevant to the proceedings, in accordance with reasonable rules adopted by the chief of police and subject to approval by the city attorney. If the hearing official finds that conditions constituting a nuisance hereunder exist, the hearing official shall issue an order so stating.
(Ord. No. 94-1163, § 2, 11-2-94; Ord. No. 98-613, § 47, 8-5-98; Ord. No. 02-528, § 14i., 6-19-02; Ord. No. 04-1075, § 7, 10-20-04; Ord. No. 06-1055, § 1, 10-18-06)

Sec. 10-544. Abatement by the city; expenses and liens.
If the owner fails to either abate the visual blight or request a hearing as provided in this article, or if it is determined at a hearing that the condition of the property constitutes a nuisance under this article, then the city shall be authorized to carry out the abatement thereof and to assess its expenses and place a lien in the same manner as provided in article XI of this chapter.(Ord. No. 94-1163, § 2, 11-2-94; Ord. No. 06-1055, § 1, 10-18-06)

Sec. 10-545. Paint provided.
An owner who demonstrates to the neighborhood protection official that his structure has been subjected to visual blight shall be provided sufficient paint materials to cover the visual blight on the blighted structure on the property. The materials will typically be from donated sources or bulk purchases and the paint may not match the existing background surface color. The owner shall have ten business days following receipt of the paint materials to abate the visual blight.
(Ord. No. 94-1163, § 2, 11-2-94; Ord. No. 98-613, § 48, 8-5-98; Ord. No. 06-1055, § 1, 10-18-06)

Sec. 10-546. Hardships.
(a) In addition to the relief authorized in section 10-545 of this Code, if the owner demonstrates that none of the family members residing in a homestead that is the subject of a visual blight notice is able to apply the paint because of age, physical disabilities, dependent care obligations or other limitations beyond their reasonable control, then the neighborhood protection official shall cause the visual blight to be abated without cost to the owner, and no lien shall be placed on the homestead property. The operation of this subsection is limited to any single family residential property that is occupied as a homestead by a 'very low income family' as defined in 24 Code of Federal Regulations Section 813.102 as computed for the city for purposes of Section 8 of the United States Housing Act of 1937.
(b) Without regard to the eligibility standards described in subsection (a) above, if an owner demonstrates that (i) the property for which the owner has been given notice of visual blight hereunder has been the subject of at least two prior visual blight incidents (evidenced by either notices provided pursuant to this article or bona fide police reports) during the preceding 180 days, and (ii) the owner complied with the requirements of this article by abating the prior visual blight within ten business days of the date of the applicable notice or police report, then the neighborhood protection official shall cause the visual blight to be abated without cost to the owner, and no lien shall be placed on the property.
(c) Each notice given under section 10-542 of this Code shall advise of the availability of the relief under this section. Applications for relief under this section shall be submitted to the neighborhood protection official in such form and with such proofs of ownership, income, disabilities, repeat occurrences and related factors as may be required to determine whether the applicant is entitled to assistance within ten days following the date the city mails or delivers the notices under section 10-542 of this Code. If the neighborhood protection official is unable to concur that the applicant is entitled to assistance, then the issue shall be scheduled for a hearing under section 10-543 of this Code, and the hearing official shall make the determination.
(Ord. No. 94-1163, § 2, 11-2-94; Ord. No. 06-1055, § 1, 10-18-06)

Sec. 10-547. Landlord/tenant.
The terms of this article shall not be construed to alter the terms of any lease or other agreement between any landlord and any tenant or others relating to property that is the subject of this article; provided that no provision of any lease or other agreement shall be construed to excuse compliance with this article by any person. It is the intent of this article to identify the parties the city will hold responsible for compliance with and violations of this article, rather than to determine the rights and liabilities of persons under agreements to which the city is not a party.
(Ord. No. 06-1055, § 1, 10-18-06)

Sec. 10-548. Noncompliance.
(a) It shall be unlawful for any person who is the owner or who has primary responsibility for control of property or for repair or maintenance of property in the city to permit, allow or suffer property that is defaced with visual blight to remain defaced for a period of ten business days after receipt of notice of the defacement.
(b) Upon completion of appropriate training, employees designated by the neighborhood protection official are authorized to issue citations charging the violation of this section.
(c) It is a defense to prosecution under this section that the person, who is the owner or who has primary responsibility for control of property or for repair or maintenance of property, has executed a graffiti abatement waiver, as promulgated by the neighborhood protection official, and has filed such waiver with the neighborhood protection official prior to defacement of property.
(Ord. No. 06-1055, § 1, 10-18-06)
Editor's note: Section 5 of Ord. No. 06-1055 states that this § 10-548 shall take effect on the sixtieth day next following the date of passage and approval of this Ordinance. All other portions of this Ordinance shall take effect immediately upon its passage and approval by the Mayor.

Sec. 10-549. Graffiti implements.
(a) It shall be unlawful for a minor to possess any graffiti implement while on any school property, adjacent public property, or private property without the prior written consent of the owner or occupant of such private property. This subsection shall not apply to the possession of permanent broad-tipped markers and paint sticks by a minor attending or traveling to or from a school at which the minor is enrolled if the minor is participating in a class at the school that formally requires the possession of permanent broad-tipped markers and paint sticks. The burden of proof in any prosecution for violation of this subsection shall be upon the minor to establish the need to possess a permanent broad-tipped marker and paint sticks.
(b) It shall be unlawful for any person to possess any graffiti implement while in or upon any public facility, building or structure owned or operated by the city or while in or within 50 feet of any underpass, bridge abutment, storm drain, or similar types of infrastructure unless otherwise authorized by the city.
(c) It shall be unlawful for a parent or legal guardian of a minor to intentionally, knowingly, recklessly, or with criminal negligence allow the minor to violate this section.
(Ord. No. 06-1055, § 1, 10-18-06)

Sec. 10-550. Access to broad-tipped markers and paint sticks.
(a) It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged, given, loaned, or otherwise furnished, any permanent broad-tipped marker or paint stick to any minor.
(b) For purposes of this section, the actions of an employee shall not be attributable to an employer if:
(1) The employer requires its employees to attend a training program regarding this section;
(2) The employee has actually attended such a training program; and
(3) The employer has not directly or indirectly encouraged the employee to violate this section.
(Ord. No. 06-1055, § 1, 10-18-06)
Editor's note: Section 5 of Ord. No. 06-1055 states that this § 10-550 shall take effect on the sixtieth day next following the date of passage and approval of this Ordinance. All other portions of this Ordinance shall take effect immediately upon its passage and approval by the Mayor.

Sec. 10-550.1. Signage.
(a) A business establishment that sells a permanent broad-tipped marker or paint stick at retail shall display a conspicuous sign, in English and Spanish, that states the following:
"Graffiti is a crime. The defacing of public or private property is punishable by a fine or imprisonment.Selling a permanent broad-tipped marker or paint stick to a person under the age of 17 is against the law. Violators can be fined up to $500.00."
(b) Failure of any business establishment to display the sign required in subsection (a) of this section shall be unlawful.
(Ord. No. 06-1055, § 1, 10-18-06)
Editor's note: Section 5 of Ord. No. 06-1055 states that this § 10-550.1 shall take effect on the sixtieth day next following the date of passage and approval of this Ordinance. All other portions of this Ordinance shall take effect immediately upon its passage and approval by the Mayor.


Commentary

This is the graffiti ordinance, updated in 2006, to help the city control street gang activity. The ordinance requires property owners to clean up graffiti on their properties within 10 days of notification by a Neighborhood Protection Officer.

The ordinance provides some relief for owners who are frequent targets, and provides free paint (always gray) for owners who wish to use it to cover graffiti. To request paint, call 3-1-1.

A provision added at the request of HAA specifies that the ordinance is not intended to determine rights and liabilities under a lease agreement.

It is helpful to take a picture of the graffiti before removing it – sometimes the photo can help police identify the gang involved.