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2008M08-Graffiti ORDINANCE NO: 08-M-08 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS CONCERNING REGULATION OF GRAFFITI IN THE CITY OF SCHERTZ, ESTABLISHING PENALTIES FOR VIOLATION, AND ESTABLISHING AN EFFECTIVE DATE WHEREAS, graffiti is an issue of concern to the City Council of the City of Schertz because the problem impacts every part of the City; and WHEREAS, the City Council finds that graffiti encourages vandalism, additional graffiti, and other criminal activities, produces urban blight, and tends to reduce property values; and WHEREAS, the City Council has determined that it is in the best interests of the City to establish a program through this Ordinance to discourage graffiti; and WHEREAS, the City Council finds that (i) placing graffiti on any property without the consent of the owner of such property and carrying graffiti implements with intent to engage in graffiti is a public nuisance and contributes to public nuisances and should be discouraged and punished, and (ii) requiring property owners to remove graffiti and providing enforcement actions for failure to remove graffiti from private property is in the best interest of the public's health and safety: NOW THEREFORE, BE IT ORDANIED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION I DEFINITIONS. For purposes of this Ordinance the following definitions shall apply: A "Graffiti" means any unauthorized inscription, word, letter, figure, symbol, or design that is marked, etched, scratched, drawn, or painted on any exterior structure surface visible from a public place, public-right-of-way, or private buildings, structures, or other facilities or upon any other property, regardless of its content or nature and regardless of the nature ofthe material ofthe structural component or property: B. "Graffiti implement" means any aerosol paint container, paint ball gun, felt tip marker, or paint stick or engraving or etching tool capable of scarring or otherwise defacing glass, metal, concrete, stucco, vinyl, wood or any other surface attached to or covering a structure or building. C. "Guardian" means any person to whom custody of a minor has been given by a court order. Graffiti Ordinance. doc -1- D. "Felt tip marker" means an indelible marker or similar implement with any size tip. E. "Paint stick" or " graffiti stick" means any device containing a solid form of paint, chalk, wax epoxy, or other similar substances capable of being applied to a surface by pressure, and upon application, leaving a visible mark. F. "Parent" means a person who is the natural or adoptive parent of a person. As used herein, "parent" shall also include a court appointed guardian or other person eighteen (18) years of age or older, authorized by the parent, by a court order, or by court appointed guardian to have the care and custody of a person. G. "Property owner" includes, but is not limited to, any legal or equitable owner, and any person having a possessor's right to land or a building or the person lawfully occupying it, any part owner, joint owner, tenant in common, tenant in partnership, joint tenant or tenant by the entirety, or any person, individual, corporation, association, or partnership in apparent or actual control of such property or any agent or employee of any of the foregoing. H. "Authorization" means with the specific consent, written or oral, of the property owner or with other authority of law, regulation, or ordinance. SECTION II GRAFFITI AND GRAFFITI IMPLEMENTS-OFFENSES. A. It shall be unlawful for any person to deface, write or mark, cut, print, stamp, indent or display any word, sentence, symbol or figure on public or privately owned buildings, permanent structures, or places located within the City, without authorization of the property owner. B. It shall be unlawful for any person to have in his or her possession, for the purpose of defacing property, any graffiti implement in any public park, public school ground, public playground, public swimming pool, public recreational facility, any public right-of-way, or other public grounds in the City. The graffiti implement shall be presumed to be for the purpose of defacing such buildings, structures, or places if the person in possession of any such implements is observed by an officer or employee of the City engaging in such defacing of property. C. It shall be unlawful for any person to have in his or her possession, for the purpose of defacing property, any graffiti implement. The graffiti implement shall be presumed to be for the purpose of defacing property if it is in the holder's possession while the holder is on private property closed to the public, without permission from the property owner or a legal agent of the property owner. D. It shall be an offense for the parent or legal guardian of a minor under 17 years of age to intentionally, knowingly, recklessly, or with criminal negligence allow such child to violate the provisions in Section IIA, B, or C above. Graffiti Ordinance. doc -2- E. It shall be an affirmative defense to prosecution if the person uses any graffiti implement in his or her employment or in connection with a school, civic or religious activity or has written permission from the property owner or legal agent of the property owner of the premises to engage in an authorized activity utilizing the implements. SECTION III FAILURE TO REMOVE GRAFFITI-OFFENSES. A. It shall be unlawful for any property owner to fail to abate or cause the abatement of graffiti from his or her property after receiving written notice as provided in Section VI of this Ordinance of such nuisance and being given a reasonable opportunity to effect the abatement as provided in Section VI of this Ordinance. B. This Section shall not apply to property that is residential owner-occupied or that is a commercial property that is occupied by an ongoing business. C. This Section shall not apply to property or structures owned by federal, state, or local governments or railroads if they have in effect a City-approved graffiti abatement plan. SECTION IV PENAL TIES. A. Violation of any of the provisions of Section IIA, B, C, or 0 of this Ordinance shall be a misdemeanor offense and shall be punished by a fine of not less than two hundred dollars ($200.00) nor more than five hundred ($500.00) for the first offense and a fme of not less than four hundred dollars ($400.00) nor more than five hundred dollars ($500.00) for the second and each subsequent offense. B. Violation of any other provision of this Ordinance shall be a misdemeanor offense and shall be punishable by a fine or any other such punishment as may be determined by a court of competent jurisdiction. C. The court shall have the discretion to provide other means of punishment for violation of any provision of this Ordinance, which may include community service. In setting penalties due hereunder, consideration will be given to the costs incurred by the property owner to remove the graffiti, the amount and visual prominence of the graffiti, and past history of the offender. In all cases, requiring removal of graffiti at the offender's expense shall be considered by the court. SECTION V FUTURE ACTIONS. A. The City agrees that it may consider future measures aimed at remedying the graffiti problem, including the following: (1) coordination of volunteer organizations which assist in graffiti removal; (2) preparation of a directory of contractors who remove graffiti for a fee; Graffiti Ordinance.doc -3- (3) publication of information on where and how to obtain free paint, tools, and materials for graffiti removal; (4) provision of information on probationer restitution serVIces available to community-based organizations for graffiti removal; (5) provision of information about graffiti abatement programs; (6) establishment ofa paint bank within the City's Department of Public Works from which community-based groups or individuals may obtain paint and materials for the purpose of removing graffiti; (7) encouragement of local businesses and other potential donors to contribute resources to the paint bank; and (8) establishment of a reward program for information concerning graffiti vandals. These programs will be considered in the future as budgetary decisions are made, but the final decision shall be made after weighing the various competing needs for public funding. B. The City shall make reasonable efforts and use reasonable available resources to promptly remove graffiti from City-owned property. The City will also consider use of lighting and shrubbery to discourage placement of graffiti on its buildings and structures. Similarly, business owners and homeowners exempted from the provisions of this Ordinance will be encouraged to use reasonable measures to prevent graffiti on their properties and to remove graffiti from their properties as soon as possible. C. A property owner who demonstrates to the Chief of Police or other City employee designated by the City Manager that his or her structure has been subjected to graffiti may be provided slJfficient paint material, if available, to cover the graffiti 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 property owner shall have ten (10) calendar days following receipt of the materials to abate the graffiti. SECTION VI NOTICES. Whenever the Chief of Police or other City employee designated by the City Manager has probable cause to believe graffiti has been placed upon any property subject to this Ordinance, the Chief of Police or other City employee designated by the City Manager shall notify the property owner in writing ofthe presence of the nuisance and, subject to Section VII below, shall provide a ten (10) calendar day period for the owner to abate nuisance. SECTION VII HARDSHIPS. A. Each notice given under Section VI of this Ordinance shall advise of the availability of the relief under this Section. Applications for relief under this Section shall be Graffiti Ordinance.doc -4- submitted to the Chief of Police or other City employee designated by the City Manager on such form and with such proofs of ownership, repeated occurrences of graffiti, and related factors as may be required to determine whether the applicant is entitled to assistance within ten (10) days following the date the City mails or delivers the notice under Section VI. B. The Chief of Police or other City employee designated by the City Manager may, at the City's discretion, cause the graffiti to be abated by the City without cost to the property owner if the property owner demonstrates that the property for which notice of graffiti has been issued has been the subject of at least two (2) prior graffiti incidents (evidenced by either notices provided pursuant to this Ordinance or bona fide police reports) during the preceding 180 days, that the property owner complied with the requirements of this Ordinance by abating the prior graffiti within ten (10) days after the date of the applicable notice or police report, and that the City has abated the property no more than twice in a calendar year. C. Relief under this Section is entirely discretionary on the part of the City. SECTION VIII ABATEMENT BY CITY; PAYMENT OF COSTS BY OWNER; IMPOSITION OF LIEN. A. If a property owner fails to abate a graffiti nuisance during the time allowed for abatement and/or fails to respond to the notice of the nuisance, the Chief of Police or other City employee designated by the City Manager may order abatement of the nuisance to be done at the property owner's expense. This remedy shall be in addition to any other remedy available. B. Persons authorized by the Chief of Police or other City employee designated by the City Manager to abate the graffiti nuisance may enter onto private property to examine such nuisance, to obtain information to identify such nuisance, and to remove or direct the removal of such nuisance. C. Whenever the City shall abate a graffiti nuisance as provided by this Section, the Chief of Police or other City employee designated by the City Manager shall have the option of using City employees and materials or selecting a private contractor to abate the nuisance. D. The City shall assess to the property owner a charge for all work done to abate the graffiti nuisance, plus an administrative expense of one hundred fifty dollars ($150.00), and shall cause the expense thereof to be assessed on the property upon which such expense is incurred. All revenue collected shall be deposited in a separate account in the City dedicated to graffiti abatement. E. A statement of the costs incurred by the City to abate the graffiti nuisance shall be mailed to the property owner, if the property owner and mailing address are known, and, if not known, may be published in a newspaper of general circulation in the City. The statement shall demand payment within thirty (30) days after the date of receipt or publication of such notice. F. If such statement has not been paid within such period, the City Manager or other City employee designated by the City Manager may file a statement of expenses incurred with Graffiti Ordinance.doc -5- the County Clerk of the county in which the property is located stating the owner's name, if known, and the legal description of the lot or parcel. The statement of expenses or a certified copy of the statement shall be prima facie proof of the expenses incurred. Such statement shall be, and the City shall have, a lien for expenditures made and interest accruing at the rate of te~ percent (10%) per annum on the amount due from the date incurred by the City. To the extent permitted by law, such liens shall be inferior only to tax liens and liens for street improvements. To the extent permitted by law, the City may foreclose such liens in a proceeding brought in accordance with applicable law. The remedy allowed in this subsection shall not be the City's sole remedy. SECTION IX SEVERABILITY. If any provision of this Ordinance is illegal, invalid, or unenforceable under present or future laws, then and in that event, the remainder of this Ordinance shall not be affected thereby. SECTION X EFFECTIVE DATE. This Ordinance shall be in force and effect from and after its final passage and any publication required by law. PASSED AND APPROVED on first reading the 12th day of February, 2008. ~. PASSED AND FINALLY APPROVED on se2l.ond a final rea.d.ing th~ay of Jpu 1 ~, 2008. \ Q .~~ ' ~yor f ~ST: U . ~~. ~~ City Secretary [CITY SEAL] Graffiti Ordinance. doc -6-