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2009M35-Restating Chapter 50, Article IX Graffiti ORDINANCE NO: 09-M-35 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AMENDING THE CODE OF ORDINANCES OF THE CITY BY AMENDING AND RESTATING CHAPTER 50, ARTICLE IX, GRAFFITI. WHEREAS, graffiti is an issue of ongoing 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 previously determined that it was in the best interests of the City to establish a program to discourage graffiti and adopted Ordinance No. 08-M-08 on February 26, 2008, which was later codified in Chapter 50, Article IX of the Code of Ordinances, City of Schertz, Texas; and WHEREAS, the City Council amended Section 50-307 of the Code of Ordinances in March of 2009; and WHEREAS, the Texas Legislature has, pursuant to House Bill 2086, imposed certain restrictions on a political subdivision's ability to require graffiti removal or to impose penalties for the failure of a property owner to remove graffiti; and WHEREAS, the City Council reaffirms its previous finding 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 the removal of 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; and WHEREAS, the City Council desires to amend and restate Chapter 50, Article IX of the Code of Ordinances, City of Schertz, Texas to comply with recent state law changes enacted by House Bi112086. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION I AMENDMENT. Chapter 50, Article IX of the Code of Ordinances, City of Schertz, Texas is hereby amended and restated to read as follows: "ARTICLE IX. GRAFFITI Sec. 50-305. Definitions. 50232208.2 - l - For purposes of this article the following definitions shall apply: .Authorization means with the specific consent, written or oral, of the property owner or with other authority of law, regulation, or ordinance. Felt tip marker means an indelible marker or similar implement with any size tip. 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 of the material of the structural component or property. 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. Guardian means any person to whom custody of a minor has been given by a court order. 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. 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 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. 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. Sec. 50-306. 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 50232208.2 -2- 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 subsection (a), (b) or (c), above. (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. Sec. 50-307. Notices and City Offer to Remove Graffiti. (a) Whenever the City Marshal or other city employee designated by the City Manager has probable cause to believe graffiti has been placed upon any property subject to this article, the City Marshal or other city employee designated by the City Manager shall notify the property owner in writing of (i) the presence of the nuisance and (ii) the city's offer to remove the graffiti from the owner's property free of charge. The property owner shall have ten (10) calendar days from the date of receipt of the city's notice under this subsection to either accept or refuse the city's offer to remove the graffiti. If the property owner does not send a written response to the city within that ten (10) calendar days, the city's offer shall be deemed refused. The city may use its sole discretion regarding the manner by which it removes graffiti pursuant to this subsection. (b) If the property owner either (i) refuses the city's offer to remove the graffiti as provided under Section 50-307(a) or (ii) fails to respond to the city's offer to remove the graffiti as provided under Section 50-307(a) within ten (10) calendar days, the city shall send the property owner a notice that the property owner is required to remove the graffiti from the owner's property on or before the fifteenth (15~') day after the date 'the property owner receives notice under this subsection. This subsection shall not apply to a property owner if the graffiti is located on transportation infrastructure and the removal of graffiti would create a hazard for the person performing the removal. (c) The notice provided under Section 50-307(b) must be given in accordance with Section 250.006(d) of the Texas Local Government Code, as amended. Sec. 50-308. 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 50-307(b) of this article, of such nuisance and being given fifteen (15) calendar days to effect the abatement. (b) This section shall not apply to property or structures owned by federal, state, or local governments or railroads if they have in effect acity-approved graffiti abatement plan. (c) This section shall not apply to a property owner if the graffiti is located on transportation infrastructure and the removal of graffiti would create a hazard for the person performing the removal. soz32zoa.a -3- ((d) This section shall not apply to property that is residential owner-occupied.] Sec. 50-309. Penalties. (a) Violation of any of the provisions of section 50-306(a)--(d), of this article shall be a misdemeanor offense and shall be punished by a fine of not less than $200.00 nor more than $500.00 for the first offense and a fine of not less than $400.00 nor more than $500.00 for the second and each subsequent offense. (b) Violation of any other provision of this article shall be a misdemeanor offense and shall be punishable by a fine or any other such punishment as maybe 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 article, 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. Sec. 50-310. Abatement by city; payment of costs by owner; imposition of lien. (a) If a property owner fails to abate or cause the abatement of graffiti from his or her property after receiving written notice, as provided in section 50-307(b) of this article, of such nuisance and being given fifteen (15) calendar days to effect the abatement, the City Marshal or other city employee designated by the City Manager may order abatement of the graffiti and charge the expenses of removal to the property owner in accordance with a fee schedule adopted from time to time by the city. This remedy shall be in addition to any other remedy available. The city may use its sole discretion regarding the manner by which it removes graffiti pursuant to this subsection. (b) Persons authorized by the City Marshal 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 City Marshal 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 the actual cost, including labor and materials, for all work done to abate the graffiti nuisance pursuant to this section 50-310, plus an administrative expense of $150.00, and shall cause the expense thereof to be assessed on the property upon which such expense is incurred. Until this section maybe modified in the future, the foregoing shall be the "fee schedule" required by Section 50-310(a). 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 pursuant to this section 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 50232208.2 -4- 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 the county clerk of the county in which the property is located stating (i) the property owner's name, if known, (ii) the legal description of the lot or parcel, and (iii) the amount of expenses incurred. 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 often 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." Sec. 50-311. 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; (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 of a 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 article will be encouraged to use 50232208.2 -5- 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 City Marshal or other city employee designated by the City Manager that his or her structure has been subjected to graffiti may be provided sufficient 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 fifteen (15) calendar days following receipt of the materials to abate the graffiti." SECTION II 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 III EFFECT ON PRIOR ORDINANCE. Chapter 50, Article IX of the Code of Ordinances, City of Schertz, Texas is hereby amended and restated by this Ordinance. Such amendment shall not affect any enforcement actions currently on-going pursuant to Chapter 50, Article IX, as amended on March 17, 2009, which shall be deemed to be on-going pursuant to this Ordinance. SECTION IV EFFECTIVE DATE. This Ordinance shall be in force and effect from and after its final passage and any publication required bylaw. PASSED AND APPROVED on first reading the 25th day of August, 2009. PASSED AND FINALLY APPROVED on second a final reading the 1st day of September, 2009. / Mayor ATTEST: City secretary [CIT SEAL] 50232208.2 -6-