Sec. 10-76. Defacing property; graffiti unlawful; graffiti tools unlawful; nuisance declared; abatement.
(a) Legislative intent. The Board of Trustees finds and declares that defacing of public or private property by painting, drawing, writing, etching or carving, by use of paint, spray paint, ink, knife or any similar method, commonly referred to as graffiti, constitutes a serious and growing menace, injurious to the public health, safety, morals and general welfare of the residents of the Town; that graffiti contributes substantially to the spread of gang activity, violence and crime; and that prompt eradication of graffiti is necessary to control the spread of graffiti, and promote the public health, safety, morals and general welfare of the residents of the Town.
(b) Definitions. As used in this Section, the following words, terms and phrases are defined as follows:
Deface means to alter the appearance of something by removing, distorting, adding to or covering all or a part of.
Gang means a group of three (3) or more individuals with a common interest or bond and engaging in activity specifically characterized by an intent to commit criminal acts.
Graffiti means the defacement of public or private property by means of painting, drawing, writing, etching or carving, by use of paint, spray paint, ink, knife or any other similar method.
Minor shall mean any person under the age of eighteen (18) years.
Owner or property owner means any person leasing, occupying, having the right to possession and/or control of any real or personal property located within the jurisdictional limits of the Town.
Prohibited graffiti material shall mean any can of spray paint, spray paint nozzle, broad-tipped marker pen, paint pen, glass cutting tool or glass etching tool or cream, which items are further defined herein as:
(a) Broad-tipped marker pen means a felt-tip marker or similar implement containing a fluid which is not water-soluble with a tip that exceeds one-quarter (1/4) inch in width.
(b) Paint pens means a tube, marker or other pen-like instrument with a tip of one-quarter (1/4) inch in diameter or less that contains paint or a similar fluid and an internal point agitator.
(c) Spray paint means any aerosol container that is made or adapted for the purpose of applying paint or other substance capable of defacing property.
(d) Spray paint nozzle means a nozzle designated to deliver a spray of paint of a particular width or flow from a can of spray paint.
(c) Defacing property.
(1) It shall be unlawful for any person to deface or cause, aid in or permit the defacing of public or private property without the consent of the owner by any method of defacement, including but not limited to painting, drawing, writing or otherwise marring the surface of the property by use of paint, spray paint, ink or any other substance or object.
(2) Graffiti. It shall be unlawful for any person to apply graffiti to any public or private property within the Town. It shall be unlawful for any person to cause, assist or participate with any other person in the application of graffiti to any public or private property.
(d) Prohibited graffiti material – possession unlawful.
(1) Possession of graffiti material unlawful.
a. It shall be unlawful for any minor, except a minor under the direct supervision of the minor’s parent, legal guardian, school teacher or a law officer in the performance of such person’s duty, to purchase, procure or possess, or attempt to purchase, procure or possess, any prohibited graffiti material.
b. It shall be an affirmative defense to charges under this Subsection that the minor possessing the material was:
1. Within the minor’s home;
2. In the course of the minor’s employment; or
3. Upon real property with the permission from the owner, occupant or person having lawful control of the property, which person may also lawfully possess such materials.
(2) Contributing to unlawful possession of graffiti material.
a. It shall be unlawful for any person, except a law enforcement officer in the performance of his or her duties, to knowingly allow a minor to possess prohibited graffiti materials upon any public or private real property.
b. It shall be an affirmative defense to charges under this Subsection that the minor possessing the graffiti material was:
1. Within the minor’s home;
2. In the course of the minor’s employment; or
3. Upon real property with the permission from the owner, occupant or person having lawful control of the property, which person may also lawfully possess such materials.
(e) Public nuisance declared. All property defaced by graffiti which is visible to public view is declared to be a public nuisance, and in the interest of public health, safety, morals and general welfare, shall be abated as set forth in this Section.
(f) Concurrent remedies. The abatement procedures set forth in this Section shall not be exclusive and shall not restrict the Town from concurrently enforcing other Town ordinances or pursuing any other remedy provided by law.
(g) Notification of nuisance. The Town Manager, or designee, may notify the owner of any property defaced by graffiti of the defacement prior to any abatement procedures. Such notice shall be in writing and shall direct the property owner to remove or eradicate the graffiti from the property within seven (7) days from the date of the written notice, or such other time as deemed reasonable in the sole discretion of the Town Manager, or designee. Service of the notice of nuisance may be personal service or first class mail, postage prepaid. The notice shall contain:
(1) A description of the property upon which the graffiti exists and a general description of the nature of the graffiti.
(2) A demand that the owner remove or eradicate the graffiti from the property within seven (7) days from the date of such notice, or such other time as deemed reasonable in the sole discretion of the Town Manager, or designee.
(3) A statement that advises that the owner’s failure or refusal to remove or eradicate the graffiti may result in commencement of abatement procedures by the Town.
(h) Abatement procedure. If the property owner fails or refuses to remove or eradicate the graffiti as directed by the written notice within the time permitted, the Town is authorized to remove or eradicate the graffiti by appropriate means. The Town Manager, or designee, is expressly authorized to enter upon private property for the purpose of causing the removal or eradication of graffiti.
(i) Assessment and collection of costs.
(1) Costs incurred in the abatement of the graffiti shall be assessed to the owner and/or lessee, agent, occupant, or other person/entity in possession or control of the property for the actual costs of the corrective action taken, including five percent (5%) for inspection and other administrative costs, including attorney’s fees, incurred in connection with the action taken regarding the property.
(2) The costs assessed pursuant to Paragraph (g)(1) above shall be the joint and several obligation of the owner and/or lessee, agent, occupant or other person or entity in possession or control of the property.
(3) The Town Manager, or designee, shall notify the owner and the lessee, agent, occupant or other person or entity in possession or control of the property in writing of the amount of the assessment for correction of the violations and that such amount is due thirty (30) days from the date of the notice, or such other time as deemed reasonable in the sole discretion of the Town Manager, or designee. Service of the notice under this Subsection is sufficient if it is deposited in the U.S. mail first-class to the last known owner of the property as reflected on the records of the County Assessor and to the last known address of the lessee, agent, occupant or person or entity in possession or control of the property.
(4) If the owner and/or the lessee, agent, occupant, or other person or entity in possession or control of the property fail or refuse to pay when due any charges assessed under this Section, the Town Manager, or designee, may collect such amount in the same manner as other delinquent bills due to the Town, including but not limited to referring the delinquent matter to a collection agency for collection. The owner and/or lessee shall be jointly and severably liable for any delinquent bill.
(j) Graffiti surcharge.
(1) In each graffiti case charged into the Municipal Court that results in a guilty plea, a finding of guilt after trial or a deferred sentence, the Municipal Court shall impose a surcharge in the amount of one hundred dollars ($100.00). In the event the Municipal Court finds that the defendant is indigent or, if under eighteen (18) years of age, that the family of the minor defendant is indigent, the Municipal Court may modify the amount of the surcharge imposed or impose other sentencing orders as it deems just and appropriate.
(2) Parental responsibility. A parent is responsible to pay the surcharge imposed by the Municipal Court, in the event the minor defendant is unable to pay said amount.
(3) The surcharge collected shall be used to pay for graffiti abated by the Town pursuant to this Section on property owned or occupied by a senior citizen or indigent person, as determined by the Town Manager.
(k) This Section is declared to be a noncriminal offense. Upon conviction, penalties set forth at Section 10-9 of this Code may be imposed by the Municipal Court. Any person convicted of violating this Section shall be ordered by the Court to personally make repairs to any property damaged, or properties similarly damaged, if possible. (Ord. 981 §1, 2008; Ord. 1019 §1, 2009; Ord. 1027 §§1, 2, 2009; Ord. 1088 §1, 2012)