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Ordinance 2006-16 ORDINANCE NO. 2006-16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, ADDING CHAPTER 54 TO THE WYLIE CITY CODE RELATING TO GRAFFITI VANDALISM AND ESTABLISHING A PROGRAM FOR THE REMOVAL OF GRAFFITI ON PUBLIC AND PRIVATE PROPERTY; PROVIDING FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING FOR PENALTY PROVISIONS FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Wylie, Texas ("City") has found that graffiti is a public nuisance and destructive of the rights and values of property owners as well as the entire community; and WHEREAS, the City Council has found that unless the City acts to remove graffiti from public and private property, the graffiti tends to remain, causing other properties and entire neighborhoods to be affected and become less desirable places in which to be, all to the detriment of the City and the public welfare; and WHEREAS, the City shall, through the adoption of this Ordinance, provide additional enforcement tools to protect public and private property from acts of graffiti vandalism and defacement; and WHEREAS, the City is authorized to enact this Ordinance pursuant to its police powers as a home-rule municipality, to provide for the removal of graffiti from private and public property. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1. Findings Incorporated. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2. Wvlie City Code Amended. The City Code of Wylie IS hereby amended to add Chapter 54 as follows: Chapter 54 Re2ulation of Graffiti Vandalism ARTICLE 1. Purpose and Intent. The City Council is enacting this Chapter to help prevent the spread of graffiti vandalism and to establish a program for the removal of graffiti from public and private property. Ordinance No. 2006-16 Graffiti Vandalism Page 1 ARTICLE 2. Definitions. For the purposes of this Chapter, the following words shall have the meanings respectively ascribed to them in this Article, except where the context clearly indicates a different meaning: (a) Aerosol paint container means any aerosol container that is adapted or made for the purpose of applying spray paint or other substances capable of defacing property. (b) Broad-tipped marker means any felt tip indelible marker or similar implement with a flat or angled writing surface that, at its broadest width, is greater than one-fourth (1I4th) of an inch, containing ink or other pigmented liquid that is not water soluble. (c) Etching equipment means any tool, device, or substance that can be used to make permanent marks on any natural or man-made surface. (d) Graffiti means any unauthorized inscription, word, figure, painting, markings or other defacement, including slogans and drawings, that is written, marked, etched, scratched, sprayed, drawn, painted, or engraved on or otherwise affixed to any surface of public or private property by any graffiti implement, to the extent that the graffiti was not authorized in advance by the owner or occupant of the property, or, despite advance authorization, is otherwise deemed a public nuisance by the City Councilor its designee. (e) Graffiti implement means an aerosol paint container, a broad-tipped marker, gum label, paint stick or graffiti stick, etching equipment, brush or any other device capable of scarring or leaving a visible mark on any natural or man- made surface. (t) Minor means a person less than eighteen (lS) years of age. (g) Paint stick or graffiti stick means any device containing a solid form of paint, chalk, wax, epoxy, or other similar substance capable of being applied to a surface by pressure and leaving a mark of at least one-eighth (lISth) of an inch in width. (h) Parent means the natural or adoptive parent or court-appointed guardian or conservator of a minor. (i) Person means any individual, partnership, cooperative association, limited liability company, corporation, personal representative, receiver, trustee, assignee, or any other entity. Ordinance No. 2006-16 Graffiti Vandalism Page 2 ARTICLE 3. Applving Graffiti Prohibited. It shall be an offense for any person to apply graffiti to any natural or man-made surface on any city-owned property or, without the permission of the owner or occupant, on any non-city owned property. ARTICLE 4. Penalties. Any person violating the provisions of Article 3 shall be deemed guilty of a misdemeanor or felony as set forth in 9 28.08(b), (c) and (d) of the Texas Penal Code, as they exist or may be amended, and, upon conviction thereof, shall be punished in accordance with the Texas Penal Code, as its exists or may be amended; and a person violating any other provisions of this Chapter shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined a sum not exceeding Five Hundred Dollars ($500.00). In the case of a minor, the parents oflegal guardian shall be jointly and severally liable with the minor for the payment of all fines. ARTICLE 5. Rewards and Reimbursements for Information. (a) The City may offer a reward in an amount to be established by resolution of the City Council for information leading to the identification, apprehension and conviction of any person who willfully damages or destroys any public or private property by the use of graffiti. In the event of damage to public property, the offender or the parent of any minor must reimburse the City for any reward paid. In the event of multiple contributors of information, the reward amount shall be divided by the City in the manner it shall deem appropriate. (b) Claims for rewards under this Article shall be filed with the City in the manner specified by the City Council. (c) No claim for a reward shall be allowed unless the City investigates and verifies the accuracy of the claim and determines that the requirements of this Article have been satisfied. ARTICLE 6. Graffiti as Nuisance. (a) The existence of graffiti on public or private property in violation of this Chapter is expressly declared to be a public nuisance and, shall be subject to the removal and abatement provisions specified in this Chapter. (b) It is the duty of both the owner of the property to which the graffiti has been applied and any person who may be in possession or who has the right to possess such property to at all time keep the property clear of graffiti. Ordinance No. 2006-16 Graffiti Vandalism Page 3 ARTICLE 7. Removal of Graffiti by Perpetrator/Offense. Any person applying graffiti on public or private property shall have the duty to remove the graffiti within twenty-four (24) hours after notice by the City or private owner of the property involved. Such removal shall be done in a manner prescribed by the Chief of Police, the Director of Public Services, or any additional City director, as authorized by the City Council. Any person applying graffiti shall be responsible for the removal or for the payment of the removal. Failure of any person to remove graffiti or pay for the removal shall constitute an offense under this Chapter. Where graffiti is applied by a minor, the minor's parents shall also be responsible jointly and severally liable for such removal or for the payment for the removal. ARTICLE 8. Removal of Graffiti by Property Owner or City/Offense. If graffiti is not removed by the perpetrator according to Article 7, graffiti shall be removed pursuant to the following provisions: (a) Property Owner Responsibility. It shall be an offense 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 property that is defaced with graffiti to remain defaced for a period of ten (10) days after service by certified mail of notice of the defacement from the City. The notice shall contain the following information: 1. The street address and/or legal description of the property sufficient for identification of the property; 2. A statement that the property is a potential graffiti nuisance property with a concise description of the conditions leading to the finding; 3. A statement that the graffiti must be removed within ten (10) days after receipt of the notice and that if the graffiti is not abated within that time the City will declare the property to be a public nuisance, subject to the abatement procedures in this Chapter; and 4. An information sheet identifying any graffiti removal assistance programs available through the City and private graffiti removal contractors. (b) Exceptions to Property Owner Responsibility. It shall be an affirmative defense to the removal requirements of subsection (a) above if the property owner or responsible party can demonstrate that: 1. The property owner or responsible party lacks the financial ability to remove the defacing graffiti; or 2. The property owner or responsible party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it shall be unlawful to permit such Ordinance No. 2006-16 Graffiti Vandalism Page 4 property to remain defaced with graffiti for a period of fifteen (15) days after service of notice of the defacement. (c) Right of City to Remove. I. Use of Public Funds. Whenever the City becomes aware or is notified and determines that graffiti is located on publicly or privately owned property viewable from a public or quasi-public place, the City shall be authorized to use public funds for the removal of the graffiti, or for the painting or repairing of the graffiti, but shall not authorize or undertake to provide for the painting or repair of any more extensive an area than that where the graffiti is located, unless the City Manager, or the designee of the City Manager, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the property owner or responsible party agrees to pay for the costs of repainting or repairing the more extensive area. 2. Right of Entry on Private Property. Prior to entering upon private property or property owned by a public entity other than the City for the purpose of graffiti removal, the City shall attempt to secure the consent of the property owner or responsible party and a release of the City from liability for property damage or personal injury. If the property owner or responsible party fails to remove the offending graffiti within the time specified by this Chapter, or if the City has requested consent to remove or paint over the offending graffiti and the property owner or responsible party has refused consent for entry on terms acceptable to the City and consistent with the terms of this Article, the City shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below. (d) Abatement and Cost Recovery Proceedings. I. Notice of Due Process Hearing. The City Manager, or the designee of the City Manager, serving as the Hearing Officer, shall provide the property owner of record and the party responsible for the maintenance of the property, if a person different than the owner, not less than seventy-two (72) hours notice of the City's intent to hold a due process hearing at which the property owner or responsible party shall be entitled to present evidence and argue that the property does not constitute a public nuisance. Notice shall be served in the same manner as a summons in a civil action brought in a Collin County Court at law. If the owner of record cannot be found after a diligent search, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation published in Ordinance No. 2006-16 Graffiti Vandalism Page 5 the area in which the property is located. Any published notice shall include the street address or legal description of the property, that the hearing is being held pursuant to this Chapter, the purpose of the hearing and the date, place and time of the hearing. 2. Determination of Hearing Officer. The determination of the Hearing Officer after the due process hearing shall be final and not appealable. If, after the due process hearing, regardless of the attendance of the Owner or the responsible party or their respective agents, the Hearing Officer determines that the property contains graffiti viewable from a public or quasi-public place, the Hearing Officer shall give written notice in an eradication order that, unless the graffiti is removed within ten (10) days, the City shall enter upon the property, cause the removal, painting over (in such color as shall meet with the approval of the Hearing Officer), or such other eradication thereof as the Hearing Officer determines appropriate, and shall provide the Owner and the responsible party thereafter with an accounting of the costs of the eradication effort on a full cost recovery basis. 3. Eradication Effort. Not sooner than the time specified in the order of the Hearing Officer, the City Manager, or the designee of the City Manager, shall implement the eradication order and shall provide an accounting to the Owner and the responsible party of the costs thereof. 4. Cost Hearing. The Owner or responsible party may request a cost hearing before the Hearing Officer within fourteen (14) business days of the City providing the eradication accounting by certified mail or hand delivery, and appropriate due process must be extended to the Owner or responsible party. If following the cost hearing or, if no hearing is requested, after the implementation of the eradication order, the Hearing Officer determines that all or a portion of the costs are appropriately chargeable to the eradication effort, the total amount set forth in the eradication accounting, or an amount thereof determined as appropriate by the Hearing Officer, shall be due and payable by the Owner or responsible party within thirty (30) days of the City providing the eradication accounting by certified mail or hand delivery. Any amount of .eradication charges assessed by the Hearing Officer that are less than the total amount set forth in the eradication accounting shall be explained by written letter from the Hearing Officer to the City Council. 5. Lien. As to such property that is not a homestead and where the responsible party is the property owner, if all or any portion of the assessed eradication charges remain unpaid after thirty (30) days of the City providing the eradication accounting by certified mail or hand delivery, the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the eradication effort. The Ordinance No. 2006-16 Graffiti Vandalism Page 6 Director of Public Services shall present a Resolution of Lien to the City Council, and upon passage and adoption thereof, shall cause a certified copy of the Lien to be recorded with the County Clerk's Office of the county in which the property is located. ARTICLE 9. Trust Fund. The City Council hereby creates the City of Wylie Anti-Graffiti Trust Fund. Penalties assessed against violators of this Chapter shall be placed in the fund, along with any monetary donations received from persons wishing to contribute to the fund. The City Council shall direct the expenditures of monies in the fund. Such expenditures shall be limited to the payment of the cost of graffiti removal, the payment of rewards for information as allowed by this Chapter, the costs of administering the Chapter, and such other public purposes as may be approved by the City Council by resolution. SECTION 3. Savings/Repealing Clause. All proVIsIOns of any ordinance in conflict with this Ordinance are hereby repealed to the extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said ordinances shall remain in full force and effect. SECTION 4. Severability. Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Wylie hereby declares that it would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid. SECTION 5. Penalty Provision. Any person violating this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as set forth in Article 4, above. Each unlawful act or continuing day's violation under this Ordinance shall constitute a separate offense. The penal provisions imposed under this Ordinance shall not preclude Wylie from filing suit to enjoin the violation. Wylie retains all legal rights and remedies available to it pursuant to local, state and federal law. SECTION 6. Effective Date. This Ordinance shall become effective immediately upon its adoption and publication as provided by law and the City Charter. [continued on next page] Ordinance No. 2006-16 Graffiti Vandalism Page 7 DUL Y PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, on this 14th day of March, 2006. ATTEST TO: Jo~~f \\\\11111',,// "", 0 F lA, 11I1I " ~I I'V 1_ , " ,J( " ........... r(. '... "" -" .' . ......, ~ r'> .,- -'. ~ ~ '''-'I' .\~., ~ "tE-~'.-:. ~ [ SEAL E ~ _.~.- -:. .. 'L----J' l $ ",,-~.. .ff::: -:. ~'. ..-.:: ~ l.if _ "" .' 1_ " ; 'Yy c....... ~J" '11111/ 1../ E, Tt..1--","" 111111'"11\\\ Date of publication in The Wvlie News - March 22. 2006 Ordinance No. 2006-16 Graffiti Vandalism Page 8 ORDINANCE NO. 2006-16 AN ORD[NANCE OF THE CrTY COUNCIL OF THE CITY OF WYLIE, TEXAS, ADDING CHAPTER 54 TO THE WYLIE CITY CODE RELATING TO GRAFFI- TI VANDALISM AND ESTABLISHING A PRO- GRAM FOR THE REMOVAL OF GRAFFI- TI ON PUBLIC AND ,PRIVATE PROPERTY; PROVID[NG FOR EPEALlNG, SAVINGS ND SEVERABILITY LAUSES; PROVIDING R PENALTY PROVI- S NS FOR VIOLA- NS OF THIS ORD[- NANCE; AND PROVID- ING FOR AN EFFEC- TIVE DATE.